Dixisteel Buildings, Inc.

DIXISTEEL BUILDINGS, INC. 393 Dixisteel Buildings, Inc. and Local 93, Sheet Metal Workers International Association, AFL-CIO. Cases 14-CA-5227 and 14-RC-6230 November 6, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On May 5, 1970, Trial Examiner Stanley N. Ohlbaum issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Exam- iner also found that the Respondent had not engaged in other unfair labor practices alleged in the com- plaint. Thereafter, the Respondent filed exceptions to the Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that the Respondent, Dixisteel Building, Inc., its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recom- mended Order. TRIAL EXAMINER'S DECISION 1. PRELIMINARY STATEMENT; ISSUES STANLEY N. OHLBAUM, Trial Examiner: This consolidat- ed proceeding 1 under the National Labor Relations Act as amended, 29 U.S.C. Sec. 151 et seq. (Act) was tried before me in the county courthouse at New London, Missouri, on 1 Case 14-CA-5227, charge filed August 8, 1969, amended charge filed September 11, 1969, and complaint issued by the Regional Director for Region 14 of the National Labor Relations Board on October 16, 1969. Case 14-RC-6230, stipulation for certification upon consent election dated August 6, 1969, approved by the Regional Director on August 7 and representation election conducted under Regional Director's auspices on January 26 through February 2, 1970, with all parties participating throughout in person or through counsel and afforded full opportunity to adduce testimonial and documentary proof, cross-examine, propose findings and conclusions, argue orally, and file briefs. Subsequent to trial, briefs were received which, together with all evidence and contentions presented, have been carefully considered. The chief issues presented are (1) whether Respondent Employer, in violation of Section 8(a)(1) of the Act (a) conducted surveillance over its employees' protected concerted activities (i.e., a union meeting), (b) coercively interrogated its employees, at various times and places through various persons, concerning their protected organizational activities and desires, (c) made promises of economic betterments to its employees if they would refrain from exercising their organizational rights under the Act, (d) made threats to its employees of the futility of their attempted exercise of organizational rights guaranteed under the Act, and (e) made threats of economic detriment to its employees if they did not refrain from exercising organizational rights under the Act; (2) whether Respon- dent, in violation of Section 8(a)(3) and (1) of the Act (a) suspended its employee Harry Rouse and (b) discharged its employee Terry Coons, because of their exercise of rights secured by the Act; (3) whether Respondent, in violation of Section 8(a)(5) and (1) of the Act (a) has refused to recognize and bargain collectively with the Union as the duly designated collective-bargaining representative of an appropriate bargaining unit of Respondent's employees, but (b) has instead engaged in the foregoing alleged violations of the Act in order to undermine and destroy the majority representative status of the Union; and (4)(a) whether the results of a Board-conducted election on September 9 should be set aside by reason of the foregoing alleged conduct on the part of the Employer in interference with the conduct of that election and (b) if the election be set aside, the appropriate remedy. Upon the entire record2 and my observation of the testimonial demeanor of the witnesses, I make the following: FINDINGS AND CONCLUSIONS II. PARTIES ; JURISDICTION At all material times, Respondent Dixisteel Buildings, Inc., has been and is a Delaware corporation with its home office in Atlanta, Georgia, and an office and plant in Hannibal, Missouri, engaged in manufacture, sale, and distribution of prefabricated metal buildings and related products. During the representative year of 1969, at and from its said Hannibal plant (the facility involved in this proceeding), Respondent in the course of its business operations manufactured, sold, and distributed, directly in interstate commerce to places outside of Missouri, products valued in excess of $50,000. September 9, 1969; objections to election filed by petitioner (Union) on September 16, 1969 ; Regional Director's report on objections, order directing hearing, and order consolidating cases, issued on October 22, 1969. Unless otherwise specified, all date references hereafter are to 1969. 2 Trial transcript as corrected by my April 10, 1970, order on notice. 186 NLRB No. 25 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I find that at all material times Respondent has been and is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act; that the above Union (Charging Party) has at all those times been and is a labor organization within the meaning of Section 2(5) of the Act; and that assertion of jurisdiction in this proceeding is proper. III. ALLEGED UNFAIR LABOR PRACTICES A. Background The chief locus of the events about to be described is Respondent's plant in Hannibal, Missouri, where it manufactures and whence it distributes prefabricated metal buildings or structures or the portions and parts involved in their assembly. Ralph Gross is manager of that plant; John Baughman, general foreman; and Kenny Kendall and Ed Cunningham, foremen, respectively, of the dayshift and nightshift. Bruce Monical, formerly dayshift foreman of the Hannibal plant, has since October 1, 1968, been Respon- dent's district sales representative for the Western States; during the period with which the instant case is concerned, Monical has visited, functioned, and been involved in activities at the Hannibal plant to the extent described below. Respondent admits that, of the foregoing persons, at all times material herein all other than Monical have been its supervisors and agents within the meaning of the Act. It is conceded that on July 3, 1969, the Charging Party (Union) requested Respondent to recognize and bargain with it as the alleged collective-bargaining representative of a majority of Respondent's production and maintenance employees and that Respondent has at all times since then refused to do so. The Charging Party alleges that, instead of recognizing and bargaining with it, Respondent thereupon embarked on a course of unlawful labor practices to undermine and destroy its status and to cause it to lose, by a vote of 41 to 29, the representation election held on the following September 9. The Charging Party, together with General Counsel, contends that Respondent's unfair labor practices in the 9-week period intervening between its bargaining request and the election have among other things been of such a nature as to have polluted the atmosphere essential to a fair election and therefore to justify a bargaining order based on the Union's majority status when it made its bargaining request. The complaint alleges 1 episode of surveillance, 15 episodes of interrogation,3 7 episodes of economic allure- ments, 7 threats of futility of organizational efforts, and 17 threats (involving 11 episodes) of economic detriments, or, in all, some 47 "independent" violations of Section 8(axl) of the Act4, as well as 2 alleged violations of Section 8(a)(3), and also alleged continuing violations of Section 8(a)(5) of the Act. For reasons of simplicity and clarity these will be considered chronologically under the section of the Act primarily involved. 3 Le., Complaint, paras. 5E, H, I, J, L, 0, R, T, U, Z, EE, GG, JJ, MM, NN, and 00. Although there are 16 separate allegations of interrogation, these actually comprise only 15 alleged incidents , since, as indicated by General Counsel's bill of particulars as well as at the trial, paras . 50 and 5R involve the same alleged incident. 4 Although separately pleaded , the 47 "independent" 8(a)(]) violations are comprised in some 22 alleged separate incidents. As will be shown, not B. Section 8(a)(1) Violations 1. March 28 It is alleged (Complaint, paras. 5B and C) that on or about March 28, Dixisteel Hannibal Plant Manager Ralph Gross delivered a speech to the employees of that plant, assembled during working hours, implying that selection of a unions would be futile since they stood to gain nothing thereby and might even lose existing benefits and that union endeavors for improved working conditions would entail strikes involving violence and employment loss. The text of this speech has been stipulated by the parties (G.C. Exh. 4). In the speech, consisting of a prepared text which Gross read, he cautioned the employees that because "an outside group is involved" he was reading his remarks since he would "have to be careful what [I] say." He informed them that "we are opposed to this attempt by the union to get your money because we believe that the union will not benefit either you, or your company." He reminded them that the Company could provide jobs for them only if it made money, which was accomplished through competi- tion in which the Union would not assist. He warned the employees that "a union will not benefit the employees here in Hannibal." He placed the employees on notice that there was no need for them to organize collectively, since if a nearby unionized plant, organized by the same Union in Tallapoosa, "receives any wage or benefit increase you will receive the same or more." Reviewing the plant' s existing fringe benefits, he reminded the employees that in the absence of a union there had been "regular work at a good wage" without layoffs or short workweeks, adding that "I urge you to consider all the factors before you make a decision." He cautioned employees not to "give up your rights as guaranteed by law by signing a union card," explaining that "by signing a union card you may be giving up your right to cast a secret ballot." He urged the workers that "before you sign a card get a written guarantee from the organizer that he will get you a better deal." He painted the picture that in the event of unionization there was no requirement that the "Company must agree" to union demands, since the "only way" the Company could be "force[d]" to agree would be "by pulling you out on strike," at which time the employees would "lose wages and possibly your job . . . when the strike is over there may not be a job for you." He pointed out to employees that "Our Steel Division just ended a 6 month strike in Atlanta. It will be years and years before those employees earn back the money they lost by being out of work for 6 months. Some may never catch up. Strikes often bring violence . I saw in this morning's paper that 2 strikers at the Royal Typewriter plant in Springfield shot a 10 year old boy? We don't want this type of thing to happen in Hannibal." Stating to the employees that "Unions are a business just like our business all of these alleged incidents occurred within the period intervening between the Union's recognitional request (July 3) and the election (September 9), the "critical period" for election interference purposes. 5 At this time the Steelworkers, a union other than the Charging Party herein, was apparently involved in unionization efforts by or directed toward Dixisteel Hannibal plant employees. DIXISTEEL BUILDINGS, INC. 395 or any other business except they make their money by selling memberships and collecting dues," he informed them that "Having a union is like having a third hand in your pocket or another mouth to feed at your table." He told the employees, "We can solve our problems without unions and the strikes they bring with them. Look what strikes have done to Hannibal. First there was International Shoe, and they moved most of their operation away. Then there was Custom Aire, and next Wendt-Sonis. The union did nothing for the employees of these plants but put them out of a job." Gross concluded with, "I hope each of you have a good weekend." It is evident from the described remarks that Respondent was unalterably opposed to representation of its Hannibal employees by a union and that it made no bones about it. That this was its legal right there can be no question. In several substantial respects, however, the speech-an important one, evidently designed to carry "punch," since delivered to employees assembled to listen to it at the Company's expense during worktime---went beyond this. It not merely seethed with union hostility, but it hovered on the edge of misleadingness (in the total context here presented, warning employees not to "give up your rights as guaranteed by law by signing a union card, "without indicating that signing a union card is itself a right guaranteed by law; so as, in the context presented, in effect to warn employees that collective bargaining was a surrender of or would result in loss of rights, rather than the exercise of a right secured to them by law). It carried the clear message of the futility of the employees' attempted exercise of the organizational rights guaranteed to them by Congress under the Act. It was also pregnant with threat in the event their exercise of those rights reached effective culmination. Gross was reading a carefully prepared "speech" to his assembled small-town factory hands. This was not a lecture to a group of sophisticated practitioners or students of labor law. A small-town factory floor, and not a university amphitheater, is the stage on which his speech-as well as the other actions and words of Respondent, to be described-must be viewed. We are required to heed the lesson we have received that "A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used" (Holmes, J., in Towne v. Eisner, 245 U.S. 418, 425), and that "Words are not pebbles in alien juxtaposition; they have only a communal existence ; and not only does the meaning of each interpenetrate the other, but all in their aggragate take their purport from the setting in which they are used, of which the relation between the speaker and the hearer is perhaps the most important part" (Learned Hand, J., in N.L.R.B. v. Federbush C., Inc., 121 F.2d 954,95,7; C.A.2). While it is true that Gross' speech contains much that is unexceptionable, it is also true that the unexceptionable was combined with sufficient that is exceptionable to contaminate and therefore require condemnation of the end product as something other than a bland comestible suitable for the consumption of small-town factory hands. "What to an outsider will be no more than the vigorous presentation of a conviction, to an employee may be the manifestation of a determination which it is not safe to thwart." ( Federbush, supra, 957.) Even assuming it could ever be satisfactorily supplied, "proof positive" that certain statements contained in a hash of other statements actually coerced employees is unessential to establish violation of Section 8(a)(1). Violation is made out "even though the statements may not be directly coercive, if they could be reasonably so construed by the employee" (N.L.R.B. v. Electric Steam Radiator Corporation, 321 F.2d 733, 736 (C.A. 6); see also, Wausau Steel Corporation v. N.L.R.B., 377 F.2d. 369, 372 (C.A. 7); N.L.R.B. v. Fora 170 F.2d 735, 738 (C.A. 6), or if "the words used . . . in vacuo, may have been innocent, in the context . . . in which the words were spoken they can reasonably be regarded as ominous" (Local 901, International Brotherhood of Teamsters v. Compton, 291 F.2d 793, 797 (C.A. 1). The knuckles of the "first inside the velvet glove" of which Mr. Justice Harlan spoke for a united Court in N.L.R.B. v. Exchange Parts Co., 375 U.S. 405, 409, are plainly evident in Gross' remarks, which in overall effect comprised a warning to employees to stay out of union affiliation. "Employees are not likely to miss the inference that the source of benefits now conferred is also the source from which future benefits must flow and which may dry up if it is not obliged" ( Exchange Parts, supra, 409). 1 believe it can fairly be said that, viewed in the spectrum of small-town (and, as observed by me, scarcely or at best modestly literate) factory workers (as distin- guished from scholars or students of industrial relations law), the skillfully tuned and selectively suggestive words of the prepared speech read by Gross were in overall thrust coercive in intent, timbre, and effect and therefore constituted an impermissibly invasive interference with employees' freedom to exercise the organizational rights guaranteed to them by the Act, spared from such pressures at the hands of the employer controlling their economic destiny. The choice to exercise a right is not truly such if it is made known in advance that the exercise of the right will be futile at the hands of the person having the power to translate the right into reality. "There is no more effective way to dissuade employees from voting for a collective- bargaining representative than to tell them that their votes for such a representative will avail them nothing." The Trane Co., 137 NLRB 1506, 1510; see also, N.L.R.B. v. Electric City Dyeing Co., 178 F.2d 980, 981 (C.A. 3); N.L.R.B. v. Gate City Cotton Mills, 167 F.2d 647, 648-49 (C.A. 5). Nor is the exercise of a right free if choked off by threat of significant harm, such as job loss. ".. . employees, who are particularly sensitive to rumors of plant closings, take such hints [involving strikes, etc.] as coercive threats rather than honest forecasts." N.L.R.B. v. Gissel Packing Company, 395 U.S. 575, 619-620. It is accordingly found that General Counsel has established the allegations of the complaint charging violation of Section 8(a)(1) in this regard. See Gissel and other cases cited above.6 6 Gross' clear implication, in his March 28 speech, that in the event of unionization the employees would lose their right to present their own grievances to management, was likewise misleading and contrary to law, since such a right is statutory and exists even in the event of unionization. (Continued) 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. March 29 The complaint (para. 5A) alleges that "on or about" March 28 Respondent through its general foreman, John Baughman, engaged in surveillance over Respondent's employees attending a union meeting at a Hannibal union hall. The only witness presented by General Counsel in support of this allegation was Respondent 's first-shift welder Harry Rouse, who testified that in midafternoon of the date in question , actually March 29, a Saturday, he observed Baughman seated in a Ford automobile near the union hall (located about a mile and a half from the plant and from Baughman's home) watching the entrance through which 20-30 Dixisteel Hannibal plant employees passed to attend a union organizational meeting. Respondent's Plant Manager Gross conceded that through his plant foremen and others he "had been made aware" of this Saturday,meeting and that, in fact, it was this meeting which caused him on the day before (Friday) to make the speech to plant employees which has been described. However, the testimony of Baughman corrobo- rated by his friends Robert E. Riney and James C. Cary as well as a group photograph , establish that on the entire day of Saturday, March 29, from early morning to midevening he was in St. Louis-a distance of approximately 125 miles from Hannibal- attending his (Baughman's and also Riney's and Cary's) induction rites (as well as on the full two preceding Saturdays, March 15 and March 22, in preparations therefor) to an advanced degree in a fraternal organization of which he (together with Riney and Cary) was a member. Baughman also denied categorically that he ever parked near the union hall to observe persons entering and leaving. He further denied owning or operating an automobile of the description in question around the time involved. Although favorably impressed with the testimonial demeanor of Rouse, nevertheless, in this aspect of the case, I accept Baughman's denial , strongly corroborated as it is, that he was not present at or anywhere near the union hall on the date alleged . While I would be prepared to believe that Rouse may be honestly mistaken as to the precise date involved, I cannot-particularly in view of Baughman's strenuous denials that he at any time had the union hall under observation or surveillance, and his undisproved insistence that he neither owned nor operated an automo- bile of the description given by Rouse-base a finding of surveillance on speculation as to some unknown date not alleged, Respondent not having been fairly apprised in a pleading (nor even at the trial) of the precise accusation it is being called on to meet so that it could have fair opportunity (such as in the case of the date of March 29) to disprove it.7 Under the circumstances, therefore, I find that General Henry' I. Siegel Co., Inc. v. N.LR.B., 417 F.2d 1206, 1215 (C.A. 6); N.L.R.B. v. Graber Manufacturing Company, 382 F.2d 990, 991 (C.A. 7). 7 It is noted that because of Rouse's testimony that the union meeting in question was a Steelworkers organizational meeting and his uncertainty as to the precise date thereof, coupled with the absence of claim by Baughman that he was in St. Louis on April 5 (the Saturday after March 29), counsel for General Counsel indicated at the trial that, in view of Baughman's unanticipated "alibi" proof, counsel of General Counsel Counsel has failed to establish by the required fair preponderance of substantial credible evidence that Respondent through Baughman engaged in surveillance of Respondent's employees, protected organizational activi- ties in Hannibal on or about March 28 as alleged in the complaint. 3. May 21 It is alleged (Complaint, para. 5D) that on or about May 21 Respondent's Plant Manager Gross promised its employees benefits if they would refrain from union representation and threatened them with loss of existing benefits if they selected the Union to represent them. As in the case of Gross' March 28 speech, which has been discussed, his May 21 address likewise was delivered to a mandatory assemblage of plant employees during the Company's paid working time, and the text of his remarks, which he again read, has been stipulated. According to Gross, the May 21 occasion was precipitated by his having learned that there was renewed organizational activity among the employees at the plant, this time involving the Sheet Metal Workers (the Charging Party herein). Reminding the employees on May 21 of his talk to them "several weeks ago" (March 28) and stating that he desired "to talk with you again today for a few minutes about that same subject," he again indicated it was necessary for him to "read what I have to say" so as to avoid misunderstand- ing, since "when an outside group is involved, you have to be careful what you say." Gross proceeded to reiterate that, as he had "said before and I want to say again," the Company remained "opposed to the attempt being made by the Union to get your money" since "the Union will not benefit you or your company" because the Company could "provide jobs for you" only if it remained "competitive." He expressly pointed out that "We have promised you before, and I want to repeat, that whatever increase in benefits or wages that are granted under the Union Contract [of the Steelworkers Union with the plant in Tallapoosa], will be installed here for you," but "without [your] having to pay Union dues." He again pointedly reminded the assembled employees that in the past there had been no layoffs and indicated that "the future is bright" for employees if they would "work and cooperate together" with the Company-the clear implication being to "work and cooperate together" without forming or joining a union. He said, "I want to urge you to talk with your foremen or with me if you have any problem," inviting employees to deal with the Company directly or through a "Shop Committee." He again-misleadingly, in my view, for the reason outlined in connection with his March 28 speech-in the total context of the other portions of that speech warned employees not to "give up your rights as guaranteed by law by signing a Union Card." He again intended to "investigate further into the matter of the [Steelworkers] meeting and on what date it occurred . I feel that it may be possible to run down a witness that may supply this information , and, accordingly, if I am able to do so I anticipate to making an application to reopen the record for the limited purpose of determining the date on which the Steel Workers meeting did take place." However, no such application has been made to the Trial Examiner. DIXISTEEL BUILDINGS, INC. 397 advised employees to insist on "a written guarantee .. . before you sign a [union] card.."8 He assured employees that "You know that you have a guarantee from the Company that [with no union] you will get whatever is negotiated with the Steelworkers Umon for employees in Tallapoosa," whereas with a union "there is no guarantee that you will have a Contract [even ] as good as the deal you have now." Advising employees to "think . . . before you act," he expressed confidence that when they considered the "facts" which he had thus placed before them, they would reject the Union "attempt . . . to get your money." It is unnecessary to reiterate here the principles adverted to above relative to Gross' March 28 speech, which are equally applicable to his May 21 remarks. Upon the basis of those principles, derived from legal authority there cited and here deemed controlling, it is found that the described remarks of May 21 likewise constituted a violation of Section 8(a)(1). 4. June 16 The complaint (para. 5E) alleges that on or about June 16 Respondent through its General Foreman Baughman interrogated an employee concerning his union sentiments and the extent of employees' union support. This is the first of no less that 15 alleged episodes of interrogation of employees at the plant between June and September concerning their union or other concerted activities protected by the Act from employer interference, restraint, or coercion. As to the alleged incident of June 16, the employee involved, first-shift panel mill operator Monty (Monte) Graham, testified that on the midweek workdate in question, about a month after he had joined the Union, Dixisteel General Foreman Baughman-concededly "the second man in charge of the Hannibal plant," sent him a message at home to come to Baughman's house, where he offered Graham a better and higher-paying job, for which Graham had put in a bid-i.e., panel mill operator (his present job) instead of maintenance helper-starting the next day. On the way out, according to Graham, within earshot of Respondent's Office Manager Jerry Stone,9 Baughman asked him, "Say, Monte, what about this union? Do you think it's strong enough, or who, you know, if they want it, or do you think it's, you know, not going too good." Graham replied that "there was a few of them wanting it and a few that didn't, but most of them seemed to be wanting the union." Baughman thereupon remarked that he "had some relation that was in union, but said that was everybody's own opinion whether they wanted a union or not." This was the one and only occasion on which Graham had been asked to come to Baughman's home, and Graham was unable to suggest why.io Respondent's General Foreman Baughman conceded 8 That such a "guarantee" could result in voiding an election won by the union, cf, e g., Graphic Arts Finishing Co, Inc v N L R B, 380 F.2d 893 (C A 4), NL RB v. Bonnie Enterprises, Inc, 341 F 2d 712 (C A 4), N ER B v Gorbea, Perez & More!!, S en C, 328 F 2d 679 (C.A 1), Wagner Electric Corp, 167 NLRB No 75. It may be of interest to note that, although Respondent itself was thus egging on its employees to insist on "a written guarantee " from the Umon as to betterments, Respondent itself later, in its affirmative defense interposed herein but withdrawn at the trial, took the position that any such promissory statements by the Union that he called Graham to come to Baughman's home on June 16 to discuss the better job on which Graham had bid and that Jerry Stone was there.ii Conceding also that the Union was discussed at this time but professing to be unable to "recall who brought the subject up," Baughman testified that Graham told him that although he had been "involved" with a prior union at the plant he "wasn't having anything to do with this one." Baughman otherwise either disputed Graham's described testimony or professed to be unable to "recall" various matters which it encompassed. Asked on direct examination whether he inquired of Graham "who was in favor of the union or who wanted it or words to that effect," after first answering in the negative Baughman again stated he was unable to "recall." However, on cross-examination, Baughman conceded that it might indeed have been he (Baughman) who "brought up the subject of the union in the [June 16] conversation." Since Graham impressed me as a truthful witness and since Baughman demonstrated significant recollective difficulties, including professed inability even to "recall who brought the subject [of the Union] up," and it seems unlikely to me that Graham would have brought the subject up since there was no apparent reason for him to do so, nor to volunteer the kind of information attributed to him by Baughman, I credit Graham's version of the incident in question and find that he was interrogated by Baughman on the occasion described. 5. June 26 It is alleged (Complaint, paras., 5F and G) that on or about June 26 Respondent caused to be delivered to its employees a letter (G.C. Exh. 6) wherein it threatened them with loss of existing employment opportunities if they chose to be represented by the Union and that it would not enter into agreement with the Union until after a lengthy strike. That the letters in question were dispatched by Respon- dent, and their content, are stipulated. The letters in question, signed by Respondent's Plant Manager Gross and addressed to employees individually by their Christian names, start with the familiar refrain, "Once again, as has happened in the past, a union is trying to organize your company." It continues: "In the past, I have talked to you about this, and you have told us you to [sic ] do not want a union." Indicating that it was designed to "tell you our side," among other things it again-as in Gross' speeches on the occasions of the employees' earlier organizational activities involving the Steelworkers (March 28, supra ) as well as the Sheet Metal Workers (May 21, constituted union interference with the election sufficient to render any certification improper without another election 9 Stone, Respondent's office manager working directly under Plant Manager Gross, was not produced by either side is According to Graham on cross-examination, "I thought it was funny, you know, being called up to his [Baughman's] house when most of the time stuff like that is taken care] of in the front office during working hours." 11 See In, 9, supra 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD supra )-pointedly speaks of "layoff," but this time adds the word "shutdown" 12 stating, "Have we ever had a shutdown, or layoff here? The answer is NO but under our union contract we have." Also taking exception to the employees' choice of union, Gross this time advised them that "this union [i.e., Sheet Metal Workers] does not generally represent workers in our industry. About half of this industry is non-union and of the other half practically none of the workers are represented by the Sheet Metal Union." 13 Once again, Gross advised the employees to "ask them [i.e., the Union] to guarantee their promises in writing. That is only fair. They won't because nothing is automatic if you get a union." 14 Gross wrote the handwriting on the wall: "Long negotiations can mean strikes. A six month strike was just recently ended with the parent company. Who can afford to be out of work for 6 months?" 15 Again, as in his previous speeches, Gross concluded with the pointed warning that employees who would "think about all these things" would "see as you have before that a union is not what you need." Since Gross' described letter of June 26 to employees is of a piece with the prepared texts of the speeches which he read to them on March 28 and May 21, described above, on the occasions of the previous attempts by Respondent's employees to exercise their statutorily guaranteed right to bargain collectively with Respondent, free of such re- straints and fetters, it is as well found that the allegations of the complaint, based on the June 26 letter, have likewise been established in this respect. dealings or knew of anyone that had dealings with the Sheet Metal Workers [Union], and I told him no. And then he asked me if I thought it was strong enough to come in, or not. I told him that I thought it was real strong, and he asked me, then, if I had attended any of the meetings, and I told him yes, that I didn't think it was any more than right for an employee to know what was going on in the plant." Testifying on this subject, Respondent's General Fore- man Baughman cenceded that he asked Graham at his machine "If he [Graham] knew anything about the Sheet Metal Workers Union or anybody 16 that had been involved with them before." On cross-examination, Baughman amplified this by adding that "I [Baughman] started the conversation. I told him [Graham] that we had talked about this one time before, in other words, we had had a discussion at my house. We were talking about it before. That's where I started the conversation there." According to Baughman, Graham merely said "he didn't want to discuss it" or "didn't want to talk about it." After observing Graham's testimonial demeanor closely, I cannot bring myself to believe that he fabricated his account of the July 1 conversation with Baughman, who, as indicated, concededly had some recollective deficiencies or difficulties at least in other respects. Graham testified forthrightly, directly, and convincingly, and I credit his version of the July 1 incident. It is accordingly found that on July 1 Graham was interrogated by Baughman concerning his and other employees' protected concerted activities. 6. July 1 It is alleged (Complaint, par. 5H) that on or about July 1 Respondent's General Foreman Baughman interrogated an employee concerning his union sentiments and activities and the Union's strength among employees. The employee in question, Respondent's first-shift panel mill operator, Graham, who, it will be recalled, was also the object of interrogation by Baughman on June 16 when he was promoted to a better job, testified that on July 1, while at work at his machine, Baughman approached him in connection with some work. As Baughman started to leave, he remarked, "`Oh, yeah, Monte [Graham], I [Baughman] know we talked about this once before, but if you don't mind I would like to talk to you again about it,' he [Baughman] said. This was about the union, he [Baughman] wanted to know if I [Graham] had any 12 That threats, hints, or suggestions of plant shutdown constitute unlawful interference, restraint, and coercion of employees under these circumstance, see, e.g., N.L.R.B. v. Gissel Packing Company, 395 U.S. 575, 618-20; Textile Workers Union of America Y. Darlington Manufacturing Co., 380 U.S. 268, 274, fn. 20; N.L.R.B. v. Exhange Parts Co., 375 U.S. 405, 409; N.L.R.B. v. Virginia Electric & Power Co., 314 U.S. 469, 477, 478; Holly Hill Lumber Company v. NLR.B., 380 F.2d 838, 841 (C.A. 4); The Little Rock Downtowner, Inc., 143 NLRB 887, enfd. as modified, 341 F.2d 1020 (C.A. 8); N.L.R. B. v. Eastern Die Co., 340 F.2d 607, 608 (C.A. 1), cert, denied 381 U.S. 951 Florence Printing Co. v. N.L.R.B., 333 F.2d 289, 290 N.L.R.B. v. Tru-Line Metal Products Company, 324 F.2d 614, 616 (C.A. 6), cert, denied, 377 U.S. 906; United Fireworks Manufactures Co. v. N.LR.B., 525 F.2d 428, 430 (C.A. 6). 13 Respondent's action is reminiscent of the action of the employer disapprovingly described by the Supreme Court in Brooks v. NLR.B., 348 U.S. 96, 103, as an attempt by the employer "to vindicate the rights of his employees to select their bargaining representative." "The right of 7. July 3 The complaint (paras. 7, 8, 9, and 10) alleges that since July 3 Respondent has refused to bargain collectively with the Charging Party (Union), notwithstanding a request by the latter as the duly authorized collective-bargaining representative of a majority of Respondent's employees in an appropriate bargaining unit. Reference to this aspect of the case is made at this point for chronological reasons only . The matter will be considered in detail under 8(a)(5) violations, infra, "III D." 8. July 3 The complaint (para. 5J), as amplified by a bill of particulars, alleges that on or about July 5 Respondent through its Plant Manager Gross interrogated another employees to be represented by officials of their own choice doubtless must outweigh any principle of persona non grata." N.L.R.B. v. Signal Manufacturing Co., 351 F.2d 471 (C.A. 1), cert. denied 382 U.S. 985. 14 That such a written promise could justify setting aside a Union victory in a representation election, see fn. 8, supra To suggest to employees, as Respondent did, that the Union would necessarily have ulterior motives in failing or refusing to make any such "promise" or to "guarantee" it "in writing" was substantially misleading, since the Union could only have done so at the cost of imperilling an election result and itself committing an unfair labor practice. 15 As Chief Justice Warren recently pointed out for the unanimous Court in N.L.R.B. v. Gissel Packing Company, 395 U.S. 575 at 619, there can hardly have been basis for such a dire picture, since no bargaining had started, nor even been agreed to by Respondent. 16 On cross-examination, Baughman varied "anybody" to "any other people" (emphasis supplied). DIXISTEEL BUILDINGS, INC. employee concerning his and other employees' union sentiments. The employee in question, Respondent's dayshift plate shearer, Richard Lee Askew, testified that on July 3 Plant Manager Gross, while driving Askew to the hospital, "asked me [Askew] what the trouble was in the shop and he [Gross] asked me about the union, what I thought about it. I said I didn't know what all the gripes was about and that they was talking about a union . . . He asked me what I thought of it." Askew, at the trial demonstrating marked hostility to General Counsel, professed to be unable to remember anything further concerning this incident "right now." However, after being shown a pretrial affidavit which he admitted executing on October 2, he professed, with ill-concealed reluctance, to remember some more "after reading the statement," thereupon conceding that on the occasion in question Gross also asked him "how I [Askew ] thought things would turn out in the union" and "what I thought about the union," to which he replied that "I didn't know how they would turn out" and that "I didn't know whether I'd like it or not." Concerning this incident, Plant Manager Gross professed to be unable to "recall" who "initiated" the conversation 17, the only portion of which he was allegedly able to remember being that he learned from Askew "that the union was quite active at that time" and "that in his [i.e., Askew's] opinion the activity was relatively more intense than it had been in the Steel Workers [i.e., on a previous occasion, when the Steelworkers Union had unsuccessfully sought to organize the plant]." Gross testified on direct examination that he could not "recall" asking Askew what he thought about the union and denied asking him how things would turn out in connection with the organizational drive or what was the trouble in the shop. On cross- examination, however, Gross characterized this as merely "improbable, in my opinion," adding that "I [Gross ] don't know anything for certain"; and he testified that he merely did not "recall" asking Askew these questions. Conceding that he did not consider Askew to be a prevaricator with respect to the matters in question which "I [Gross] don't recall," Gross acknowledged that he did not attribute to Askew fabrication on the matters regarding which Askew had testified but on which Gross' memory was "imperfect." Comparing testimonial demeanor in this aspect, and considering Gross' equivocating recollectional process as demonstrated, as well as the admissions wrung from Askew-a most reluctant witness, visibly hostile to General Counsel and seemingly intent on currying favor with his employer at the trial18-1 credit Askew's testimony, as "refreshed" by his pretrial affidavit, that he was indeed interrogated, as described, by Dixisteel Plant Manager Gross, on July 3, concerning his and other employees' protected concerted activities. lr Shortly after so testifying on direct examination , in response to a question by the Trial Examiner, Gross stated flatly that "I [Gross] did not initiate a conversation concerning the union with Mr. Askew." Gross then indicated that he was "able to remember . now" that it was Askew who initiated it. However, on cross-examination Gross again testified that he was unable to recall how this conversation came about or who brought up the subject of the union. 18 At the trial, Askew exhibited unconcealed truculence toward counsel 399 9. July 5 The complaint (para. 51) alleges that on July 5 Respondent through its General Foreman Baughman interrogated still another employee regarding his union sentiments. The employee in question, Respondent's first-shift spray painter, Jim Porter, testified that in the shop on July 5 General Foreman Baughman "asked me [Porter] what I thought about a union . . . I told him if it got in, it was all right; if it didn't it was all right." Denying that July 5 was a workday, Baughman nevertheless conceded on direct examination that he "could have had some discussion with him [Porter], yes," around July 5 "about the union around the plant." Questioned, also on direct examination, whether he asked Porter "what he thought about the union," Baughman's response was, "I don't remember." Under these circumstances, since my reaction to Porter's testimonial demeanor at least in this aspect was favorable, and his described testimony for practical purposes stands undenied, crediting Porter I find that on the occasion in question, around July 5, he was interrogated by Baughman concerning his union sentiments. 10. August 7 Respondent is alleged (Complaint, paras. 6A and D) to have suspended its employee Harry Rouse on August 7 because of union or other protected concerted activity. This allegation, which will be considered in detail under Respondent's alleged Section 8(a)(3) violations, infra, "III C I," is referred to at this point for chronological reasons only. 11. August 11 (Monica] re Lear) The complaint alleges (para. 5T) that further interroga- tion by Respondent took place in the Hannibal plant on or about August 11 by Respondent, in this instance through its agent and supervisor, Bruce Monical, and involving its employee, Charles Harold Lear, concerning his and other employees' union activities and sentiments. Inasmuch as Respondent disputes the supervisory and agency status of Monical, who is implicated not merely in the interrogation of Lear but in various other alleged violations of the Act, it is necessary preliminarily to consider his status. a. Status of Bruce Monica!; facts as found Bruce Momcal was day-shift foreman at the Dixisteel Hannibal, Missouri, plant until October 1, 1968, when he was appointed to be the Dixisteel western states regional sales representative . Before entering upon his new responsi- bility, Monical completed an orientation course at the for General Counsel, who attempted with varying success to make Askew hew to the pretrial affidavit which he had furnished to a Board investigator at a time when there is no indication that Askew had any object to tell other than the truth-as distinguished from the trial , when he testified under the watchful eye of his employer (i e , Gross), toward whom his shifting testimonial gaze was observed constantly to wander uneasily. See International Union, UAW v N LR.B (Preston Products Corp), 392 F 2d 801, 807-808 (C.A.D C), cert denied 392 U.S. 906 , Gissel, supra, 608. 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dixisteel Main Office or headquarters in Atlanta, Georgia. He then moved to Denver, Colorado, which was to serve as his base of operations. As western states regional sales representative for Dixisteel products, the western territory is assigned exclusively to Monical. He is one of only about a dozen such representatives for the entire United States. Monical's immediate superior is Regional Sales Manager Neerland who is one of two regional sales managers for the entire country and has 5 regional sales representatives under him and who reports directly to the Company's main office in Atlanta. As regional sales representative, Monical himself has nobody working directly under him. Since leaving the Hannibal plant in his capacity of foreman in the Fall of 1968, Monical has returned there on a number of occasions. Various employee witnesses testifying in this proceeding identified Monical as their previous foreman, who had several times returned to the plant in his new capacity. In August (1969), when Monical was at the Hannibal plant for some 10 days in the official capacity to be described, Respondent's welder Hooper exhibited the quality of his welding to Monical, because (as Hooper testified) Monical "sold the [Dixisteel prefabricated] buildings. These things that I [Hooper] welded went into the buildings. I made the door jambs and window jambs and frames and stuff like that." From August 4 to 14, Monical was at the Hannibal plant in the official capacity of temporary replacement for Dixisteel Regional Sales Manager Neerland who in turn was filling in at Dixisteel headquarters in Atlanta for Dixisteel General Sales Manager Horner who was ill. While there, Monical was established in Neerland's office, which is located in the Hannibal plant adjoining the office of Hannibal Plant Manager Gross, who has no authority whatsoever (according to Gross' own testimony) over Neerland (nor the latter over Gross). Both during direct and cross-examination, Hannibal Plant Manager Gross confirmed that he and Neerland "operated on approxi- mately the same level in the hierarchy of the company." While at the Hannibal plant in August, according to the testimony of Hannibal Plant Manager Gross, Monical was not under Gross but functioned directly under Dixisteel Atlanta headquarters. Gross expressly conceded, also during both direct and cross-examination, that there is "no question" that "Mr. Monical is an agent of the Company." It is established through the undisputed testimony of various Hannibal employees that Monical was circulating around among them in the shop when he was there in the described capacity in August-at the height of the employees' union organizational activity and shortly before the Board-conducted representation election of September 9-talking to them individually. (Monical even called at least one employee-Porter- into General Foreman Baughman's office to discuss union organizational matters with him.) Although Plant Manager Gross denies knowing about this, his denial is unconvincing in view of the open and unconcealed nature and the quantitative extent of Monical's activities (to be described) among the employees during the August period in question, as well as the length- 10 days-of that period. Gross himself testified, "I [Gross ] am in the shop at least twice a day and I make it a practice of visiting with various folks as I go through the shop and very often they indicate to me some of the things that are going on; if they don't, the foremen do.. . . They [employees] don't come to me; as I go through the shop and discuss business with employees or discuss personal affairs with them, which I do, this subject [of the Union] has come up.... I go into my plant all the time. I'm out there a good bit of the time. I go to work stations where men are working to see what they are doing and how they are doing it and on various occasions lots of things...." Gross conceded on cross-examination that Monical was in the plant prod- uction area "with my [i.e., Gross'] knowledge" and that at no time did he (Gross) "ever talk with Mr. Monical or warn him against talking to employees in the production area"; further, that he (Gross) "didn' t mind his [i.e., Monical's] using company time for this.... I did not object, maybe I should have, but I didn't." To Respondent's counsel's question on direct examination, "Did he [Monical] receive any direction or instruction from the company insofar as activities of the union campaign," Gross' response was, "No, sir." (This is consistent with the widespread activities of Monical among the plant employees during the critical August preelection period in question.) Under these circumstances, it seems most unlikely, and I cannot bring myself to believe, that Gross was unaware of the nature of Monical's August activities among the plant employees. Gross concedes that at no time did he "take any steps to disavow anything that Monical might have said to .. . employees" during the period in question in August.19 b. Discussion and conclusions General Counsel has alleged that Monical is both a supervisor and an agent of the Company. In the described circumstances, Respondent contends he is neither. It is unnecessary to establish that Monical was a "supervisor," since in the circumstances shown here such a finding is unessential as a basis for holding Respondent accountable for his actions. Former Foreman Monical was the stand-in for Dixisteel Regional Sales Manager Neer- land and was established in Neerland's office adjoining that of Dixisteel Hannibal Plant Manager Gross. According to Gross' own testimony neither Neerland nor Monical was subordinate to Gross but, on the contrary, operated at the same managemental hierarchical level as Gross. By reason of these facts, in a very real sense Monical-who was known to the employees as their previous foreman, who had evidently advanced to even greener pastures up the ladder of success in the Company's organization-stood for management and the Company's point of view and position in the eyes of the rank-and-file employees among whom he freely circulated in the plant during their and his paid worktime in the critical preelection period. Like Gross (and Neerland), Monical's line of authority stemmed directly from company headquarters in Atlanta. There is little warrant for supposing, in the described circumstances, that Monical's activities vis-a-vis the rank-and-file employees-coinciding as they did with the Company's 19 As has been pointed out (fn. 1, supra ), the complaint was issued on charge of September 11, all of which were served on Respondent. October 16, preceded by the original charge of August 8 and the amended DIXISTEEL BUILDINGS, INC. 401 avowed principles, interests, and objectives in opposition to plant unionization or organizational activity by the employees-were those of Monical personally, as distin- guished from those of the employer or whose premises and paid worktime they were uninterruptedly accomplished. Thus, whether or not Monical was a "supervisor" within the meaning of the Act is not controlling; what is controlling is that, even if he was not a "supervisor," he filled the shoes of top management and to the rank-and-file employees he stood for the Company, his words to them in a manner of speaking coming "straight from the horse's mouth," thereby making the Company accountable for his words and deeds. Shop Rite Foods, Inc., 141 NLRB 1013, also involved statements to employees by one who, while actually or ostensibly not a "supervisor" within the statutory defini- tion, was nevertheless identified with management in the eyes of employees. Holding the Company to be accounta- ble for his actions even if not a "Supervisor," it was there stated at 1021: "Even if [Hogue] was not [a supervisor within the meaning of the Act], his statement to [employee] Hunnicutt that Respondent's president would close the Warehouse (if it should become unionized) is neverthe- less chargeable to the Respondent. The Respondent had put Hogue in a position to be identified with management in the eyes of the employees and to translate to them the policies and desires of manage- ment." As a known former Plant Foreman who had therafter presumably advanced himself on the ladder of the Company's hierarchy, in the eyes of the employees here, Monical was presumably "a person who was acquainted with Respondent's policies and desires with regard to the Union and the effect of unionization on the [factory]. [Id.] And the plain fact of the matter is that here Respondent did nothing to disabuse the employees of the notions implanted in their minds by Monical, although Respondent could readily have done so. By electing not to do so, Respondent sought to capitalize on the supposed benefits to it from Monical's actions-which were identical to its own viewpoint and desires and which directly furthered its own intersts and objectives in the situation-while at the same time conveniently seeking to insulate itself from the statutory prohibitions on such actions. Cf. Solo Cup Company, 114 NLRB 121, 123, enfd. 237 F.2d 521, 524 (C.A. 8); Time-O-Matic, Inc., v. N.L.R.B.,264 F. 2d96, 99-:100(C; A. 7) ; McKinnon Services, Inc., 174 NLRB No. 169. Moreover, in any case, Monical was here in fact and in law Respondent's agent. Indeed, at the trial Hannibal Plant Manager Gross several times expressly acknowledged Monical's status as Respondent's agent. In so doing, Gross neither misspoke nor was his concession more than the circumstances require. Our point of departure in this regard is the admonition written into the Act as Section 2(13): In determining whether any person is acting as an `agent' of another person so as to make such other person responsible for his acts, the question of whether the specific acts performed were actually authorized or subsequently ratified shall not be controlling. It has been emphasized in the clearest of terms that narrow common law concepts of respondeat superior do not govern situations with which proceedings such as this are concerned. "It is true of a union as of an employer that it may be responsible for acts which it has not expressly authorized or which might not be attributable to it on strict application of the rules of respondeat superior. International Association of Machinists v. Labor Board 311 U.S. 72, 80; Heinz Co. v. Labor Board, 311 U.S. 514." Milk Wagon Drivers Union v. Meadowmoor Dairies, Inc., 312 U.S. 287, 295. It is further to be observed, however, that agency through releasing an actor into operation on a set stage, so to speak, or through ratification, knowledgeable acceptance or retention of the fruits of the disputed agent's actions, or through failure to disavow, are firmly recognized even under technical common law concepts of agency. See: Restatement (Second) Agency, ch. 4; Henry I. Siegel Co., Inc. v. N. L. R B., 417 F.2d 1206 (C.A. 6); Amalgamated Clothing Workers of America, AFL-CIO v. N.LRB., 371 F.2d 740, 744 (C.A.D.C.); Intertype Company v. N.LR.B., 371 F.2d 787, 788 (C.A. 4); Colson Corporation v. N.LRB., 347 F.2d 128, 137 (C.A. 8), cert. denied 382 U.S. 904. As stated by the Supreme Court in International Association of Machinists, etc. v. N.L.R.B., cited in Respondent's brief, 311 U.S. 72, 80: We are dealing here not with private rights nor with technical concepts pertinent to an employer's legal responsibility to third persons for acts of his servants, but with a clear legislative policy to free the collective bargaining process from all taint of an employer's compulsion, domination, or influence. The existence of that interference must be determined by careful scrutiny of all the factors, often subtle, which restrain the employees' choice and for which the employer may fairly be said to be responsible. Respondent's argument that Monical's activities were without the knowledge or acquiescence of Gross is wide of the mark in several respects. To begin with , for reasons already explicated, this has not been satisfactorily estab- lished to have been the fact, and the evidence to my mind indicates the contrary, as I have found. It is hardly likely that Monical's open and unconcealed circulation among employees in the plant over a 10-day period was unobserved by Gross and his immediate subordinate supervisory assistants. Moreover, Gross' own testimony shows that Monical operated at the same level of the Company's managerial hierarchy as Gross himself (i.e., directly responsible to the Company's Atlanta headquar- ters); thus, in any event Gross had no authority to proscribe such activities on the part of Monical. Indeed, Gross concedes he did not do so; and the record rather clearly shows that Monical's activities were of a piece and character with those of Gross himself. No superior of Monical was produced to testify to any facts indicative of lack of authority on the part of Monical (any more than on the part of Gross) to do and say what he undisputedly did and said. Much is sought by Respondent to be made of the fact that Monical may have indicated to some of the employees that he had not been told to talk to them, or that he was doing this on his own, or even that he had been told not to 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD talk to employees about the Union. Particularly in the circumstances described, I am unimpressed by this argument. To begin with, just who, if anybody, told this to Monical, or, indeed, if it had any element of truth about it at all, has not been established, since Respondent elected not to have Monical testify. The action of an employer's emissary or agent in prefacing unlawful interrogation, interference, and coercion with the statement that he is not supposed to be engaging in it hardly avoids for him or his principal its consequences. Such attempted provisos are suggestive of a clever ploy to reap the benefits, while seeking immunity from the dangers, of actions which the actor himself recognizes to be improper. If permitted, an employer could thereby hide behind the skirts of his agent who on behalf of the employer engages in interference, restraint, and coercion of employees in promotion of the employer's openly avowed objective of preventing employ- ees from exercising their statutory rights to bargain collectively. Cf. Nopco Chemical Company, 138 NLRB 1275, 1280, and cases there cited. For these reasons, Monical's described "confessions," in certain instances, during the course of unlawful actions toward employees, were hardly more than self-serving disavowals. In short, the essential character of an act is not changed, nor its consequences avoided, by the actor's ° mere advance disclaimer- particularly when it takes nontestimonial form-if in fact the act is unlawful. It is also suggested by Respondent that Monical's activities are being overemphasized, since his actions were intended as friendly gestures toward old acquaintances. While the existence, to say nothing of the quality, of such "friendship" may be questioned 20, it is not likely-"friendship" or no-that such pronouncements straight from one close to the seat of authority, on the grave hazards to continuance of existing employment opportuni- ties and benefits, would be taken with other than the utmost seriousness by employees dependent for their livelihood on their jobs. Cf. N.L.R.B. v. Marval Poultry Company, Inc., 292 F.2d 454 (C.A. 4); Caster Mold & Machine Company, Inc., 145 NLRB 1614, 1621. The warning was long ago sounded that "executives who threaten in jest run the risk that those subject to their power might take them in earnest and conclude the remarks to be coercive." A.P. Green Fire Brick Company v. N.L.R.B., 326 F.2d 910, 914 (C.A. 8). See also, Kingwood Mining Company, 166 NLRB 957, 958. "Even though such statements may be expressive of opinion only, if their reasonable tendency is coercive in effect, they are violative of Section 8(a)(1)." N.L.R.B. v. Kingsford, 313 F.2d 826, 832 (C.A. 6), and cases cited. See also, N.L.R.B. v. Gissel, 395 U.S. 575, 616-20; Metropolitan Life Insurance Company, 166 NLRB 553; Little Rock Hardboard Company, 140 NLRB 264, 266-67. "Employees are not likely to miss the inference that the source of benefits now conferred is also the source from which future benefits must flow and which may dry up if, it is not obliged." (Harlan, J. in N.L.R.B. v. Exchange Parts Co., 375 U.S. 405, 409.) If Monical was not serious about what he was telling the employees, or if he intended his remarks to be taken lightly, he could have said so, or, better still, refrained from them altogether under the circumstances. I reject Respondent's contention that it may not be held accountable for Monical's actions because they were casual episodes engendered and executed in a spirit of beneficent friendship. As already indicated, I am not unaware that Monical was not produced to testify, although he was presumably readily available to Respondent for that purpose. Consider- ing that it was totally unexplained21, this failure seems somehwat suspicious or suggestive that Respondent did not wish to expose him to examination under oath as to some or all of the many material facts on which his testimony could have been assistive. In view of all of the circumstances and considerations shown, it is found and concluded that at the times here material, in relation to the actions to be described, even though Monical was not a "supervisor" (as defined by the Act) over the Dixisteel Hannibal production and mainte- nance employees here involved, he was with relation thereto an agent (as defined by the Act) of Respondent and that Respondent is here properly answerable for those actions. We return to consideration of the earliest of the actions ascribed to Monical; namely, interrogation of employees at the plant on August 11.22 This episode-one of several such-is said to have involved Respondent's loader Charles Harold Lear, who testified that on August 11, while at work on the plant loading dock, Monical, whom Lear knew as the former day-shift plant foreman: asked me [Lear] did I think the union would get in, and I told him that I didn't know, but that I hoped so, and that I had a problem because I was tired of people telling me to shut up and I don't want to hear any more of your [i.e., Lear's? ] lip. At that time he [Monical ] got a phone call and the 3:30 buzzer rang and I went home. This episode was succeeded, according to Lear, by another union-slanted incident the next day, this time involving two other employees as well as Lear, described below; during this incident, Monical asked Lear if he thought he "was being treated fair" on the job. When Lear replied in the negative, "he [Monical ] asked me [Lear ] why didn't I quit." Lear replied that he did not want to start all over again someplace else. As already indicated, Monical did not testify; nor was any explanation offered for Respondent's failure to call him. Although Lear conceded on cross-examination that Monical told him on August 11 that "the company had told him [Monica!] not to say anything about the union to us [employees]," as shown above this neither legalizes Monical's actions nor, even if true (Monical did not testify), does it insulate Respondent for responsibility therefor. Indeed, statements of this nature sometimes may be bait to induce employees to talk freely when otherwise they might not, and they may carry more potentiality for the mischief which the Act is designed to avoid, because of their seemingly disinterested concern for the employee's welfare. It cannot be said that when a high-level agent acting in the 20 "Thy friendship oft has made my heart to ache ; Do be my responsible for Monical's actions. enemy-for friendship's sake." (Blake, To Hagley) 22 Complaint, para. 5T. 21 Other, of course, than Respondent 's contention that it is simply not DIXISTEEL BUILDINGS, INC. employer's interest interrogates employees (or commits other acts comprising unfair labor practices) the employer is automatically absolved of liability therefor simply because the agent intones the phrase that he was told not to do what he is in fact doing. For one thing, the interrogated employees have no way of knowing whether this is the truth; for another, they have no way of knowing what will be reported by the agent to the employer. Even if it be assumed that the agent "exceeds" his authority-an assumption which may be unwarranted-in his principal's interest, on straight agency lines the principal may nevertheless be held . N.LR.B. v. Solo Cup Company, 237 F.2d 521, 524 (C.A. 8); N.L.R.B. v. Acme Mattress Co., 192 F.2d 524, 527 (C.A. 7); Restatement (Second) Agency secs. 228-230,233-235. Crediting the testimony of Lear, who impressed me as a truthful witness, and in the absence of any countertestimo- ny by Monical, I find that at Respondent's plant on or about August 11, 1969, Respondent's employee Lear was interrogated by its agent Momcal concerning employees' protected concerted activities. 12. August 11 (Monical, re Brown) The complaint (para. 5K), as amplified by a bill of particulars, also alleges that on the same date (August 11) Respondent through Monical implied to an employee that it would be futile for Respondent's employees to be represented by the Union. This particular employee, Respondent's second-shift welder Delford Eugene Brown, testified that on the occasion in question Monical, whom he knew as the former foreman, "in the front [of the plant] next to the offices .. . brought up the subject of the union, and he [Monical ] said he didn't think it would be a good idea for the union to be voted in right now, because it would do more harm than it would good." Most of the rest of the conversation apparently concerned hunting, so far as Brown professed to be able to recall. Although Brown's testimony stands uncontroverted, since Monical did not testify, nevertheless I believe the stray remark attributed by him to Monical to be sufficiently vague and insubstantial as to partake of the character of a mere expression of opinion, privileged under Section 8(c) of the Act, so as not to constitute interference, restraint, or coercion, and I therefore find that proof of the allegation of the complaint under immediate consideration has not been sustained. 13. August 11 (Monical, re Hastings) The complaint (paras. 5L, M, and N), as amplified by the bill of particulars, further alleges that, also on August 11 in the plant, Respondent through Monical interrogated another employee concerning the Union, threatened the employee with loss of seniority and work opportunities in the event of unionization, implied that employee Harry Rouse (discussed under "8(a)(3) Violations," infra, "III C I "), had been disciplined by Respondent because of his union activities, and threatened retaliation against other employees if they chose to be represented by the Union. Uncontradicted and uncross-examined testimony of the 403 employee in question, Respondent's first-shift layout operator Glenn W. Hastings, Jr., an impressively credible witness, established that on August 11, in Hastings' work area in the plant, Monical, whom he recognized and knew as the former plant foreman and whom he observed to be circulating around in the plant production area talking to other employees as well: asked me how I was doing, I told him I was fine. Then he asked me if I thought the union would get in, I told him I didn't know. Then he asked me how long I had been here. I told him a little over two years. And he told me if the union would get in that I would lose all my seniority and that I would have to start from scratch. Then he said, `The Atlanta plant has a union, and it's no good, because in the wintertime it's slow, the work is slow, and up here it's not a union and they always found something for you to do up here, but if they did go union up here that the plant would have to cut down on the hours.' He also said he'd hate to see the union get in because he would see a lot of his friends hurt. . . . He said if a union would get in that overtime would be cut down and a lot of men would be laid off. As already indicated, Hastings' testimony was in no way either controverted or impeached, since Monical was not called and Hastings was not cross-examined, and I was well impressed by his testimonial demeanor. Crediting his testimony, I accordingly find that the complaint allegations in this aspect, except for the particular allegation (part of para. 5N) pertaining to Rouse, have been established and that Respondent through its agent Bruce Monical in its plant on August 11 coercively interrogated and threatened its employee Hastings in respect to rights secured to employees by the Act. 14. August 12 The complaint (paras. 5V, W, X, and Y) additionally sets forth that on August 12 in the plant Respondent through Monical quizzed an employee as to what he thought he stood to gain through union representation; implied that union representation would be futile with the Company; gave assurances of betterments in working conditions in the event the employees withdrew their support of the Union; and threatened loss of employment opportunities (overtime work) and worsened working conditions if the employees persisted in their attempted organizational efforts. Credited testimony of the employee in question, Respon- dent's loader Charles Harold Lear (who had already been the subject of unlawful interrogation at Monical's hands on the previous day, August 11 and whose favorable testimonial impression on me has been mentioned), established without contradiction that on the date in question, in a small building near the factory loading dock, Monical entered into a discussion with three employees, including Lear. As described by Lear: We got on the subject of the union somehow and Bruce Monical said that he didn't see why we wanted a union. He said that the union that was in the plant down south, after it got in, it sold them out down the river. He said after it got in that they assessed all the workers down there $30 for union expenses and said that our union dues would be $24 a month. He also talked about if the DECISIONS OF NATIONAL LABOR RELATIONS BOARD union wanted more money, all they had to do was go to the office and tell the main office that they needed more money and they would raise our union dues. Then we got on the subject of my going to sleep in the bathroom, which I went to sleep in the bathroom and someone told on me and the foreman, Baughman, wrote it up in my file. Mr. Monical told me that if the union had been in then they would have fired me, and he said if the union gets in things are going to be stricter than hell. ... we got on the subject of I hadn't been working there too long and Carl Mayors [a fellow employee] and I had a disagreement about something and we was having an argument. I was sort of mad, and he was too, and foreman Baughman asked what it was about. I started to say something and he told me to shut up. He said something else and then I started to say something and he told me that he didn't want to hear no more of my lip. Mr. Monical said these are the types of things he wanted to know, because he could help us more with this than a union can. He said, "Ralph [Gross, the Hannibal plant manager] wants to help you guys, but he can't help you as long as this mess with these [union] guys are going on." ... Mr. Monical said that if the union got in there wouldn't be no more overtime, and he knew that there wasn't going to be no more money. ... [And also,] we was talking about job security and Mr. Monical asked me, did I think I was being treated fair. I said no, and then he asked me why didn't I quit. I told him that I didn't want to quit because I had been there for quite a while and I didn't want to go someplace else and have to start all over with security. It seems reasonably clear that the August 12 discussion between Monical and the three employees involved questioning by and disclosure to Monical concerning work problems in the frame of reference of Monical's and therefore Respondent's "help[ing] us more with this than a union can . . . `but [not] as long as this mess with these [union] guys are going on.' " This was rapidly followed by Monical's remarks "that if the union got in there wouldn't be no more overtime, and he [Monica]] knew that there wasn't going to be no more money ... and . . . [if I didn't] think I was being treated fair ... why didn't I [Lear] quit." It seems apparent that on the described occasion Monical was not merely painting a black picture of futility and economic detriment to the employees if they persisted in attempting to deal collectively with the Company, but was also engaged in trying to elicit information from these employees, in the guise of a "discussion" concerning their work problems and union organizational desires, aspira- tions, and activities.22 As such, the incident seems necessarily to have involved interrogation quite as much as 22 On cross-examination, Lear acknowledged the possibility that he "might have ... brought the union up. I was telling him [Monica) I why I wanted the union ." Even assuring this were true, the circumstance that an employer interrogates and otherwise coerces an employee during such a "discussion" does not legalize it. Cf. Radiator Specialty Company v. N.LR.B., 336 F.2d 495,497-98 (C.A. 4); Viking ofMinneapolis, 171 NLRB No. 7; Joslyn Stainless Steels, 167 NLRB 353, 356; Heick Moving & Storage, Inc., 150 NLRB 1124, 1130. 23 Although on cross-examination an admission appeared to be elicited economic threats coupled with allures, directly concerned with the employees' pending attempts to solve their work problems and better their working conditions through protected concerted activities. Crediting Lear, who, as I have already stated, impressed me as a truthful witness, and considering Monical's failure to testify, I find that on April 12 at Respondent's Hannibal premises Respondent, through Bruce Monical, engaged in the described actions, substantially as set forth in the complaint. 15. August 14 It is further alleged in the complaint (paras. 5Z, AA, BB, CC, and DD) that on or about August 14 in the Hannibal plant Monica] interrogated another employee on the subject of his union affairs, indicated the futility of unionization at this plant, promised future benefits and improvements if the employees forsook the Union, and threatened loss of work opportunities and of jobs in the event employees exercised collective-bargaining rights through the Union. The employee here involved, Respondent's first-shift rough spray painter James A. (Jim) Porter, testified that on the occasion in question Monica], whom he knew as his former plant foreman, called him into the plant office and: asked me [Porter] how I was doing and I told him [Monical ] all right. He said something about Mr. Gross [plant manager] told him something about having trouble with the union and he said he was sorry to hear that. He asked me what I thought about the union. I told him the same thing I told John [Baughman, general foreman ], if it got in it was all right; if it didn't, it was all right. Upon refreshment of his recollection from a pretrial affidavit, Porter added that Monica] also "asked me [Porter] if I had attended any of the union meetings. I told him one ..." Cross-examination elicited that Monical also asked Porter, " `Jim, what good do you think you'll get out of a union?' " Monical proceeded to wam Porter that " 'If the union got in, you would have to pay union dues about six dollars a week,' and he [Monical] said, 'if they needed more money for anything you would have to pay more.' I [Porter] told him ya, and he said that they had a strike down in Tallapoosa, Georgia [in another Dixisteel plant, which is unionized ].... He said they had a strike down there and they wanted more money, and they negotiated. He said pretty soon, after awhile, they came back to the same thing that they was after in the first place. He said something about they went on strike in Winsanta [a Hannibal tool plant].... They went on strike there and they moved it out.... The owner moved it down south [is what Monical said]. . . . [ 23 ] Bruce Monica] told me that Mr. Gross [Hannibal plant manager ] had said something to from Porter that he did not receive the "impression " that the Company "was going to move out of Hannibal," considering the immediately preceding portion of the cross-examination which quoted such a statement from Porter's pretrial statement in reference to Gross and not Monical, and the general level of the witness' mentations as compared with those of alert cross-examining counsel, it may well be that Porter was confused. In any event, however, it is settled that the test of the coercive nature of words or acts does not depend on the subjective reaction of the person at whom directed. Wausau Steel Corporation v. N.LR.B., 377 F.2d 369, 372 (C.A. 7); DIXISTEEL BUILDINGS, INC. him about they was trying to get a union in, and he said that it kind of hurt his feelings, you know, to think that we needed a union.... he said something about if the union did get in that a whole lot of-let me get this straight- he said if the union did get in a whole lot of old-timers wouldn't be there. . . . He said something about Harry Rouse 24 being the ringleader, getting paid by the union, by the guys who were trying to get the union in.... He said something about buying us beer. He said that he could do the same thing." After additional resort to his pretrial statement, Porter swore that Monical also "told me that we were getting all this insurance free, that we was getting the same benefits as Tallopoosa was. He [Monical] also asked me, he also said that we was getting the same benefits as Tallopoosa was and that if the union got in, I think I said it, but I will say it again, if the union got in a lot of them that was there would be gone." Cross-examination elicited the following from Porter (after consulting his pretrial state- ment): "He [Monical] said, `Jim [Porter], what good do you think you'll get out of a union?' I told him that I was after more money. He said, `You get the same benefits that they get down in Tallopoosa, but you are getting it free.' He said, `You don't have to pay any union dues or pay for any of your insurance.' He said, `You are getting the same benefits that they are getting down there.' " During the course of the foregoing, General Foreman Baughman entered the office but, observing that Monical was talking to Porter, "went back out." Although Porter required extensive recollectual refresh- ment via his pretrial affidavit to the Board, nevertheless, considering his observed cerebrational level and the absence of any contervailing testimony by Monical, on balance I am satisfied that Porter was testifying truthfully, and, therefore, I credit his testimony, I find that Monical did indeed on August 14 engage in the interrogation and other improper actions described, substantially as set forth in the complaint. 16. August 15 (Monical) Also with regard to Monical, it is alleged (Complaint, paras. 50, P, Q, R, and S) that on or about August 15 he interr ogated still another employee concerning his and other employees' desires to be represented by the Union; gave assurances of work betterments if the employees withdrew their union support; and threatened that other employees, as in the case of Harry Rouse,25 would be laid off or discharged for union activities or in the event of unionization and that they would lose existing employee benefits if they chose to act collectively through the Union. The employee here involved was Respondent's former first-shift welder Edger Hooper, an impressive witness, whose uncontradicted testimony establishes that during work in the plant on that date Monical, whom he recognized as his former supervisor and foreman and to Eastern Die Company, 142 NLRB 601, 602 fn 2, enfd., 340 F 2d 607 (C A 1), cert denied 381 U.S 951; Zimnox Coal Company, 140 NLRB 1229, 1234, enfd as modified 336 F 2d 516 (C A. 6), N L R B v Electric Steam Radiator Corporation, 321 F 2d 733, 736 (C A 6), Local 901, Teamsters v Compton, 291 F 2d 793, 797 (C A 1), NLRB v Ford, 170 F 2d 735, 738 (C.A. 6) It is most unlikely that in speaking of plant closure and removal 405 whom he showed "how good a weld it was" that he was producing: said he [Monica!] was just passing through and was hearing rumors of the union. He asked me [Hooper] what I thought about it. Before I got a chance to answer him he said Harry Rouse was so mixed up with the union that he was already gone. He said if the union would get in there would be a bunch of people that would be laid off, Harry Rouse for sure. He went on, he said instead of sweeping floors during slack periods of time, why, we would all be laid off. He said when the people down in Georgia got their union they had to pay a lot of extra money the union never told them about whenever they got in. He said we'll all be laid off whenever the union got in. He said we'd lose everything that we had built up if the union got in. He said I didn't want to lose everything that I built up in the three years that I was there. Hooper added that Momcal also: told me to tell him if they had any changes that could be made in the building to make the working conditions better, and he says, "Tell me about it and we will make the changes for that." [Emphasis supplied.] Hooper denied that Monical told him anything to the effect that the Company had not instructed or asked him to talk to employees or that he was doing this "on his own." As in the case of the other witnesses who testified concerning Monical, Respondent did not produce Monical to dispute this or otherwise to testify. Crediting the uncontradicted testimony of Hooper, I find that on the described occasion on August 15 in Respon- dent's Hannibal plant he was coercively interrogated and threatened by Respondent 's agent Monical, substantially as alleged in the indicated portions of the complaint. 17. August 15 (Cunningham) The complaint (paras. 5EE and FF) alleges that at the Hannibal plant on or about August 15 Respondent's Foreman Ed Cunningham interrogated an employee about how he intended to vote in the upcoming representation election to be conducted by the Board and implied to the employee that union representation would be futile and incur employer retaliation. The employee in question, Respondent's day-shift machine operator Robert L. Wade, testified that on the occasion in question he was working overtime on the second shift when Cunningham "just asked me [Wade] how I felt about the union and how I was going to vote, and at the time I told him [Cunningham ] that I was against it. He went on and mentioned something about if a place in St. Louis would go on strike that we would have to go on strike too, something to that effect." Wade later added that Cunningham also said "something about he [Cunningham] couldn't see where a union would do these guys any good. in the described context Monical was endeavoring to do other than by citing the example he gave, to suggest that this would or could happen likewise at the Company's plant if it became unionized. 24 See "Violations of Section 8(a)(3)," infra, "III C I " 25 See "Violations of Section 8(a)(3)," infra, "III C 1 " 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD He said some of them have it made now and don't realize it!" Respondent's Foreman Ed (Samuel) Cunningham cate- gorically denied that he had ever discussed the Union at any time with Wade or that he had ever had any conversation of the nature described by Wade in whole or in part. Even allowing for Wade's purportedly flagging recollec- tive powers requiring assistance from an earlier pretrial affidavit or statement which he had furnished to a Board investigator on October 2, I have difficulty in bringing myself to believe that Wade simply manufactured the described incident out of the whole cloth, as Respondent's witness would have it. Upon careful evaluation of testimonial demeanor as observed, I find that General Counsel has sustained his burden of establishing the matter in question, substantially as alleged in the complaint, in respect, however, only to interrogation and the futility of Union representation, but not as to any threat of retaliation in the event of unionization. 18. August 26 Respondent is alleged (Complaint. pars. 6B, C, and D) to have discharged Terry Coons on August 26 in violation of the Act. This matter, mentioned here only for chronological purposes, is considered in detail under Respondent's alleged violations of Section 8(a)(3), infra, "III C2." 19. August 28 (Gross, re Askew et al.) The complaint (par 5GG) alleges that again on or about August 28, at the Hannibal plant, Respondent engaged in interrogation of employees concerning their union senti- ments, this time of 5 employees through Plant Manager Ralph Gross. Concerning this, General Counsel's witness Askew-as has been remarked in another connection, a visibly reluctant and hostile witness to General Counsel-testified that on the afternoon of the date in question he together with 4 fellow-employees (Roger Luken, Carl Brown, Jim Roland, and Wilbert Dusenberry) were summoned or invited to Plant Manager Gross' office, where "we was asked [by Gross ] what we knew about the union and what we thought of it." After his recollection was purportedly refreshed by a pretrial affidavit which he had furnished to a Board agent and which Askew admitted he read in its entirety before he signed it under oath, Askew added that during the meeting in question in his office Gross also "asked us about the good points and the bad points of the union, what we thought, and he also said that if we had any ideas to let him know. . . . and that he hoped things would 25 On cross-examination, Askew added that Gross had stated on this occasion that it was "not on account of the union that things are slow." Gross, however, denied or at least claimed he could not recall anything like this. 26 On the cross-examination of Askew, counsel for Respondent elicited from Askew a denial that Gross had told those present at the foregoing conference in Gross' office that Gross was there to answer their questions and to provide them with information that might be helpful to them. 27 It is also noted that, for example, union activists or adherents Rouse, Graham, Hastings, and Hooper were concededly not invited to attend any be different . . . that he hoped that things would pick up." 25 Testifying on the same subject, Respondent's witness Ralph Gross, the Hannibal plant manager, stated that the described meeting in his office on August 28 was one of 7 such meetings which he conducted between August 28 and September 5 (i.e., the Friday before the Board election of September 9) with groups of employees in his office, by his invitation, for the first time in the Company's history. The duration of each meeting, on Company paid worktime, was 30 to 75 minutes. According to Gross, he told the employees that their attendance was voluntary and that his purpose was "simply to provide [you] with information or answer any questions [you ] might have regarding the affairs of the union which I might be able to give to [you]."26 Gross then (according to his testimony) called on each employee in turn, the first (i.e., at the described August 28 meeting) being Roland, who indicated it "was not to his [i.e., Roland's] liking" that the union representative had stated that the employees would not have their own local. Further, according to Gross, Roland "talked at length on many subjects," including "the matter of union dues" and "relative to the International Shoe Company, which at one time was located in Hannibal"; also that "the unions had given Hannibal a hard time, or words to that effect." Although, according to Gross, the purpose of these meetings with groups of his employees in his office was for the employees to ask Gross questions if they wished to, nevertheless none of the foregoing was a question-"Mr. Roland didn't ask me a question, he apparently, well, he began to talk and made statements, not questions"; Roland simply "began talking" and "the other employees were listening." It is noted that Roland was not among the union card signers 27; according to Gross' testimony, in making up the various groups for these group sessions in his office, he attempted to compose "a representative group, in my mind, of the people that we had at the plant," Gross insisting that "the mix . . . was chosen with no specific thought given to it," although at that time he had a "pretty good idea" as to who were "the real union activists." At these meetings in his office, as explained by Gross, he called upon and gave the floor to each employee to speak individually in turn. Gross conceded that he made no statement at these meetings "that there would be no reprisals on [the Company's] part for anything they might say," since "I assumed they knew it." Asked what he told the employees at these meetings, Gross' reply was, "I did very little talking." 28 Questioned as to whether he asked the employees anything, Gross' reply was that other than asking for questions in general he was unable to "recall any specific question that I ever asked anybody.... I don't believe I did, I was trying to be very cautious." However, Gross subsequently testified that of these conferences. According to Gross, he omitted, to invite them because he felt that "these gentlemen pretty well had their minds made up. I didn't feel anything I would say would persuade them . ..." Also according to his testimony , Gross did not invite any other employee "who I felt whose mind was fairly well made up." Gross nevertheless rejected the notion that "the purpose of the meeting[s] was to try to swing these employees to vote for the company" at the impending Board election. 28 Gross later denied that he "volunteer[ed ] any information at all, of any kind, on [my ] own." DIXISTEEL BUILDINGS, INC. "They [i.e., the employees] asked questions, I answered them." 29 Disputing Askew's testimony, Gross denied that he asked the employees what they knew or thought about the union or their views concerning the good and the bad points regarding the Union. On cross-examination, Gross conceded that he "told [these ] employees that [I ] expect[ed ] things to get better at Dixisteel"; questioned as to whether he "asked employees let you [i.e., Gross] know what the company could do to improve things," Gross replied that, although he was unable to "recall," "It is conceivable that I could have." My assessment of the comparative testimonial demean- ors of Askew vis-a-vis Gross, here germane to the extent of resolving such credibility issues as remain when their testimony is viewed side by side, to a degree reflects my observations of Askew's hostility to General Counsel, who seemingly kept him on course only through use of the tight bridle of his pretrial affidavit, and the ostensibly blurred and vacillating recollections of Gross. Under the circum- stances, after close observation and careful weighing, in my judgment the scales definitely preponderate in favor of accepting the testimony of Askew. Indeed, the testimony of a witness who, like Askew, is visibly hostile to the party calling him (here, General Counsel) and who leans strongly in favor of the opposite side (here, Respondent), but nevertheless reluctantly testifies in favor of the party toward whom he exhibits hostility, may be entitled to greater weight than otherwise. Crediting Askew, therefore, I accept his version of what he ascribes to Gross at the August 28 meeting called by Gross in his office. That meeting (the first of 7 of the same nature shortly before the Board election), unique in the history of the Company, held in the boss' front office, in what is sometimes regarded as that awesome "locus of final authority in the plant" (General Shoe Corporation, 97 NLRB 499, 502), under the circumstances shown was plainly an informationgathenng device or form of interrogation, if not an invitation to direct dealing instead of collective bargaining.30 While testifying that "I [Gross] didn't recall any employee stating to me how he was going to vote," Gross conceded that at these meetings, nevertheless, "I do recall employees stating their position on the matter at hand at that time." Nonetheless, the precautions spelled out by the Board in Struksnes Construction Co., Inc., 165 NLRB 1062, 1063, and approved by the Supreme Court in N. L. R. B. v. Gissel Packing Co., 395 U.S. 575, 609 (see also, N.L.R.B. v. Historic Smithville Inn, 414 F.2d 1358, 1362 fn. 10 (C.A. 3), cert. denied 397 U.S. 908,) were not observed by Respondent. It is accordingly found that, as alleged in the complaint, on August 28 at its Hannibal plant Respondent through its Plant Manager Ralph Gross interrogated 5 employees concerning their union sentiments. 20. August 28 or 29 (Gross, re Sellers et al.) Another of the 7 meetings held by Plant Manager Gross 29 Gross cited as examples questions concerning the employees' obligation to join the Union in the event of plant unionization, dues and assessments, and whether employees had to vote at the Board election Gross conceded that "I am sure there was [additional questioning by the employees] . I just don't remember" On cross-examination, Gross agreed that he indicated to the employees, when some "personal problems 407 with small groups of selected employees in his office between August 28 and September 5, is referred to in the complaint (pars. 5HH and II), in this instance alleging economic threat tied to unionization and economic allurement coupled with withdrawal from the Union. General Counsel's witness in this regard was Respon- dent's first-shift machine operator Alfred P. Sellars, who testified that, by personal invitation of Plant Manager Gross, on the morning of August 28 he attended a meeting in Gross' office with 5 other employees ( Eugene Kinder, Danny Woodson, Russell Smith, Donald Amburn, and George Davis). Gross had told Sellars prior to the meeting that he (Gross) would "try to answer any questions that [you] had concerning about the union" so as to "help [you] make up [your] mind." At the meeting, questions were raised on various subjects, such as union assessments, to which Gross replied that "to his knowledge they could, that in Tallapoosa that the union tacked on a 27 dollar assessment on each employee." Sellars' testimony further indicates that Gross informed this group of employees that "probably if a union come in and if work got slack and you had no work, that you would not be sweeping the floors [as you are now, when work is slack] and that, because he didn't think the union would allow it, that you'd probably be sent home." Gross volunteered "that he couldn't say what, but he said just be patient and things would look better in the future . . . before long." According to Plant Manager Gross, the foregoing group meeting took place in his office on August 29. He denied that he or anybody else made any statement about union assessments. Questioned by Respondent's counsel as to whether "anything [was] said in that meeting about slack work," Gross' reply was merely, "I don't recall" in response to a leading question, however, he added that at "one of the [7] meetings" the subject of "employees not getting to sweep floors when there was slack work" was raised; and that "I [Gross] answered it this way, that if we did not move men from one job, or from one machine, or from one occupation to another that our only choice would be that if there was no work at that station or that operation, or that machine, to lay them off, that we did not practice that and hopefully would never practice that." According to his testimony, however, Gross apparently added that the Company might have to do this "in accordance with the terms of any agreement that was negotiated [by the Union ] with the company," while conceding at the trial that he had no reason "whatsoever" to "believe that the agreement might so provide." At another point, on cross-examination, Gross conceded that in a pretrial affidavit or statement he had declared that when an employee asked the Company's position he (Gross) had said, "What is the alternative, when a man's job runs off, what does he do? A man's job runs out, he goes home, that's all." Gross conceded that "at that time it was not normal practice for men to be sent home when the job on which they were assigned ran out." He further conceded telling one or more of these employee came up," that he "didn't want to discuss" them. 30 Cf. Tom Wood Pontiac, Inc, 179 NLRB No. 98 In the aspect of Gross' calling on each employee to talk in turn, there also comes to mind the scene depicted in The Coachman's Inn, 147 NLRB 278, 285-86, enfd 357 F 2d 134, 136 (C A. 8) 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD groups in his office that he "expected things to get better at Dixisteel," but that "[my] hands [are] tied as long as the union matter [is ] going on." Sellars impressed me as a truthful witness. Coupling his described account of the meeting, which I credit, with Gross' admissions and recollective lapses, I find that, in effect as alleged in the complaint, on August 28 or 29 Respondent through Plant Manager Ralph Gross, at its Hannibal plant, indicated to employees the probability of reduced employment opportunities in the event of plant unionization and also the likelihood of plant improvements and betterments when his "hands" were no longer "tied as long as the union matter [is ] going on." 21. September 2 The complaint (para. 5MM) alleges that again on or about September 2 an employee was interrogated at the Hannibal plant, this time by Respondent's Foreman Kenneth (Kenny) Kendall, concerning how the employee intended to vote in the union representation election scheduled to be conducted by the Board the following week. The employee involved in this episode was Respondent's first-shift machine operator Robert L. Wade, who testified that on the occasion in question, in the production area of the plant, Kenneth Kendall, his immediate Foreman, "ask[ed] me [Wade] how I felt about the union . . . and said it didn't matter to him [Kendall] either way how it went. I told him how I felt, that I didn't know whether I was for or against it at that time." Without explanation, Kendall was not produced by Respondent to testify regarding this episode, which also was in no other way controverted. Crediting Wade's account as described, I find that Kendall interrogated Wade in the plant on or about September 2 concerning Wade's union sentiments. 22. September 5 Once again, on or about September 5, according to the complaint (paras. 5JJ and KK), employees were interrogat- ed in the plant by Plant Manager Ralph Gross concerning their union affairs, were given assurances of economic betterments for disassociating themselves from the Union, and were threatened with the reduction of work opportuni- ties and with layoffs in the event of unionization. Respondent's dayshift automatic welder helper Robert W. Wienhoff testified that on the date in question he was asked by Plant Manager Gross to come to his office for a meeting that afternoon. Present in Gross' office, in addition to Gross and Wienhoff, were employees Robert Wade, Enoch (Eric) Nichols, and Sam Keller. As testified by Wienhoff: [Plant Manager Gross] said he was glad that we'd all been able to come, that he wanted to know what the 31 At the trial Wienhoff exhibited an accurate understanding of the accepted and usual meaning of "seniority." Concerning the system of "seniority" then existing at the Hannibal plant, Wienhoff testified that Plant Manager Gross "had his list there of the jobs that had been bid over two or three years, and he [Gross I said of all those jobs that had been bid only four or five of them went because of other than seniority . Otherwise, on a job if a man bid on seniority but they did not believe he had that problem was, and we got around to the union.. . . He came out and said he could not tell us how to vote but that he knew we'd know how he felt on the matter... . We went on and he asked what some of the problems were. Bob Wade came up and said the biggest problem that we had out there was the wages, and we talked about wages. Mr. Gross said that he didn't expect Bob Wienhoff to come in and work starting off at $1.90 and expect to stay at that wage forever. Otherwise, he would just consider Bob Wienhoff stupid. He didn't consider Bob Wienhoff to be stupid, he expected one to better himself. He went on and said that he realized that some of the jobs were underpaid out there, and he had seen discrepancies out there that could be changed but he could not make the changes until after these union negotiations and stuff were in process, that his hands were tied, that he couldn't make changes in the plant itself. I brought up the subject, `Well, you say wages are going to get better. Could you give us any reasonable time limit on that, three months, six months, a year, five years?' He answer was, 'I can tell you it won't be five years.' We went on to talk about the question of seniority, and from what I gathered seniority would strictly be the rule if the union got in. [Gross said that,]... [m]aybe not in those exact words but it was that seniority would rule if the union got in.... It was brought up on this seniority deal that if I had this job and when the slack season came along he wouldn't be able to change us around, transfer us around through the plant like he had done. Seniority would be the rule and the oldest man would stay and the youngest man would have to go home. I asked that questions several times. ; Mr. Gross said, it was brought up in the meeting, he said if the union got in seniority would be the ruling factor, and during the slack season there would be no work, the youngest man there would go, he couldn't put him sweeping the floors.31 s * s Outside of wages and seniority, those were the biggest points of conversation in his office. I know it lasted quite a while. We went over and over most of these subjects. We couldn't get a straight answer from Mr. Gross. I realize he said his hands were tied, he couldn't make promises, he couldn't make a statement. Wienhoff's account of this meeting was in part corrobo- rated by Respondent's first-shift machine operator Robert L. Wade, whose recollection, however, was not as detailed. According to Wade, Plant Manager Gross told the employees that he: just wanted to know what our main gripes were and why the guys were not satisfied with the way things were running now, and he wanted to know how we felt about capability and the man they knew had the capability, he got the job." Also according to Wienhoff, at this time Respondent followed the practice of detailing employees to other jobs, rather than furloughing them, if there was insufficient work of the nature normally performed by the men. Wienhoff testified that Gross indicated that in such a situation, if the Union came in the junior employee(s) "would be let off to go home." DIXISTEEL BUILDINGS, INC. 409 the union . . . [and] he would like to know if there was anything he could do to help with matters. . . . He asked us if we knew of any problems that we thought he could solve, and we started then telling him just exactly how we felt the union got started in the first place... . [Gross] said if [work was slow and a ] union was to get in that a machine operator or any other operator couldn't be pushing a broom. He could send them home if they ran out of work rather than transfer them like he does now 32 Cross-examination of Wade by Respondent elicited that the foregoing relative to temporary transfers was stated after "Gross said you had never had a layoff, he [Gross] wasn't looking to see one." Wade also recalled that Gross "did say the conditions would be changed but he [Gross] couldn't make a specific date or promise anything, but he said that things would be better than they are now." After considerable jogging of his memory by a pretrial affidavit or statement which he had furnished to a Board agent, Wade amplified this by stating: I [Wade] told him [Gross] that the guys were satisfied with a dime raise every six months, so he gave us an answer to that. He said he couldn't guarantee more wages right now at this time because right now his hands were tied, he couldn't do anything because the union was trying to get in. He was not allowed to do anything, make promises or anything. So Enic Nichols asked him why a guy helping him should make as much as Enic makes, and Mr. Gross agreed that this was not right because there should be only one operator on a machine. Something was mentioned about the help being underpaid. He agreed to that, but he still said that he couldn't guarantee higher wages at this time. He stressed this again, that his hands were tied, he couldn't do anything. I told Mr. Gross that I thought the hospitalization benefits could be improved. I don't recall him giving me an answer to that. It may be seen from the foregoing that, as thus described, these private conferences in Gross' office resembled rudimentary bargaining sessions. The foregoing meeting in Gross' office, on the Company's paid worktime, lasted about an hour and a half according to Wienhoff and was unprecedented. Respondent's Plant Manager Gross' version of the foregoing was, in essence, that it was like his other preelection meetings with other employee groups (two of which have already been described); that (in response to a question relating to overtime) he explained that employee Wade rather than senior employee Sellers had been assigned overtime because Foreman Cunningham knew Sellers was going bowling on the company team; and that he replied to other questions which were raised. Conceding 32 Cross-examination of Wade disclosed an area of uncertainty on the part of Wade as to Gross' precise words or manner or context of expressing this. However, during cross-examination Wade testified that Gross did not ask him how he felt about the union but that Wade told this to Gross. Wade ascribed inability to recall details to the lapse of time , during which they had "slipped my mind." Attempts by counsel for General Counsel to refresh Wade's recollection with the assistance of a pretrial affidavit or statement furnished by Wade to a Board agent, demonstrated that information which he had supplied to the Board agent had indeed either "slipped [the] mind" of, Wade or that he was pretending that they had. that he "told Mr. Wienhoff that we had never had a layoff at Dixisteel, and hopefully never would have one," Gross denied that he indicated that in the event of unionization employees would no longer be shifted to other jobs but would be laid off in case of lack of their specific kind of work. However, Gross admitted that this subject was discussed, but that his (Gross') position was that "it was entirely dependent on what sort of contract would be negotiated between the company and the union, that I had no way of forecasting what procedure would be used in layoffs or cutbacks." Gross flatly denied that he asked these employees "what their problems were, or what problems they had"; "what their gripes were," "how they felt about the union," or "how the union got started"; and he also flatly denied that Wade or any of the others at this meeting "volunteer[ed ] any information . . . with regard to how he felt about the union." Gross swore that he was unable "at this specific time . . . [to] recall" whether he told these employees that some jobs were "underpaid at Dixisteel" (as testifies by Wienhoff, but he conceded that he did make "that statement" at some time and place. Gross conceded that he did tell these employees that "Dixisteel was a growing company, we expected things to be better in the future because we expected more sales, more markets, that we would expand, and a statement to that effect"; and he conceded that he also told these employees that his "hands were tied, or that Dixisteel's hands were tied while the union efforts were going on, or while the campaign or organization was going on." In the described essentially sharply conflicting state of the record, I have given the weight which in my judgment is deserved by my strongly favorable impression of Wien- hoff's testimony demeanor, the partial corroboration thereof by Wade (particularly after refreshment of his recollection by his substantially more contemporaneous pretrial statement to the Board agent), and the to a degree equivocating testimony of Gross. After carefully weighing these factors in relation to the described testimony, within the frame of reference of the record as a whole, I credit Wienhoff's testimony and find that a fair preponderance of substantial credible evidence establishes that on or about September 5 in Respondent's Hannibal plant its Plant Manager Ralph Gross interrogated employees concerning their union sympathies and affairs, indicated reduction of employment opportunities in the event of plant unioniza- tion, and conveyed assurances or prospects of economic betterments in the event of nonunionization and cessation of organizational activity, in essence as alleged in the complaint. 23. September 8 The complaint (para. 5LL) alleges that on or about While conceding that his memory was fresher when he supplied the information in statement form to the Board agent, even after reading it, Wade claimed at the trial that "it is still foggy in my mind," although "apparently I did think it was the truth then" and "wouldn 't have told it to [the Board agent I if I didn't. For this reason, and because I am uncertain whether Wade really suffered a partial recollective failure or whether he was for some reason merely dissembling, I do not place primary reliance on his testimony even to the extent it is corroborative of that of Wienhoff. I do, however, rely on the testimony of Wienhoffs who testified with candor and what impressed me as honesty and truthfulness. 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD September 8-the day before the Board-conducted union representation election-Respondent's Plant Manager Gross in a speech to assembled employees in the Hannibal plant on company-paid worktime indicated that the employees' choice of collective representation through the Union would not only be futile but might result in diminution of wages and loss of existing employee benefits. The text of the speech in question is stipulated ( G. C. EXH. 7 ), as are the fact and physical circumstances of its delivery as described above. As in the case of Gross' previous speeches to assembled employees, there is much in the text of this speech that is unexceptionable. However, this "eleventh hour" preelec- tion speech by Gross must be viewed in the perspective of the total stream of events which preceded it-namely, a rather full course of assorted unfair labor practices designed to stem the tide of the exercise by the employees of their statutory right to deal collectively with Respondent. In his preelection speech, Gross chose to lay unmistake- ably heavy emphasis on the fact that a union victory in the upcoming election would mean nothing tangible to the employees since it would mean "only the right to begin talking that's all"; that "Nothing is automatic"; and that "The Company does not have to agree to anything." He therefore chose to caution the employees about what he characterized as "the union['s] last minute trick [regarding a `proposed contract'] of making ridiculous promises to fool you." At the same time he saw fit to emphasize to the employees preparing to vote, that: We can as the law says bargain hard . . . negotiations can go on a long time . I have known negotiations to last for as long as a year. This is a fact you should know. Also during negotiations all wages and fringe benefits are frozen at the present level, and talks begin as to where they will be after the negotiations. The Company has as much right to ask for lower wages and less fringe benefits as the Union has to ask for an increase. Gross added: Unfortunately, negotiations can mean strikes. In fact the Sheet Metal Workers in Kansas City just finished a 90 day strike and I have known strikes to last as long as three years. He concluded with the warning: I just want you to consider facts and not promises. I think if you consider all the facts you'll vote for the Company and not the Union, and its false promises. It was either substantially false and misleading or a serious threat for Gross to state to the assembled employees that "during negotiations all wages and fringe benefits are frozen at the present level." If Gross meant only to say that during collective bargaining an employer is not at liberty to raise wages and increase fringe benefits unilaterally, he should have said so, instead of sending the message to the employees on the verge of voting that if they exercised their right to bargain collectively the results would be that their pay and benefits would be "frozen at the present level" during what he pictured as an extremely protracted period of "negotiations." He chose himself to label his remarks not as a "prediction" but as "a fact you should know," and upon the basis thereof to sound the warning to the employees that "if you consider all the facts you'll vote for the Company." It was also highly misleading for Gross to state to these employees readying themselves to vote that any collective negotiations regarding "wages and fringe benefits" would be concerned with "where they will be after the negotiations" (emphasis added), since, as is well known to person versed in industrial relations and collective bargaining-unlike the factory hands at whom these election-eve misrepresentations were beamed-it is not unusual for collective agreements to provide for wage increases and other betterments retroactively, such as to the date of recognition, certification, or commencement of collective bargaining. Where an employer takes it on himself to instruct and advise his employees as to the law, he is held to at least a reasonable standard of accuracy; he may substantially misinform and misadvise only at his peril. To couple the described substantantial misrepresenta- tions, as they were here, with dire references to indefinitely protracted negotiations and lengthy strikes ("as long as three years"), and even the prospect of wage and fringe benefit rollbacks as "facts" which the employees should consider in deciding to "vote for the Company and not the Union," was in practical effect-considering the factory hands at whom these remarks were forcefully directed with the obvious intent that they be taken seriously-to engage in a crude form of coercion and restraint of their statutorily guaranteed right of freedom to bargain collectively. By having presented to them by their Plant Manager on Board election eve, following months of unremitting unfair labor practices, a picture of protracted collective bargaining involving the prospect of lengthy strikes , during all of which their incomes would be "frozen" and after which (even if "successful") any raises would apply only in the future, was in effect to present to the employees as "facts" (to borrow Respondent's own repeated expression) a picture of futility as well as substantial economic loss. In the total frame of reference here presented, such threats are outside of the protection of Section 8(c) of the Act and constitute interference with and restraint and coercion of employees' statutorily secured rights under the Act. N.LR.B. v. Gissel Packing Co., 395 U.S. 575, 618-20; Amalgamated Clothing Workers of America v. N.LR.B. [Winfield Manufacturing Co., Inc.], 424 F.2d 818, (C.A.D.C.); Georgia-Packing Corp., 181 NLRB No. 53; Unitec Industries, 180 NLRB No. 4; Viking of Minneapolis, Division of Telex Corporation, 171 NLRB No. 7. It is accordingly found that the allegations of the complaint (para. 5LL) relative to Gross' preelection speech of September 8 have been sustained. 24. September 9 (Gross) The complaint (para. 500) further alleges that in the plant on or about September 9, Plant Manager Gross interrogat- ed an employee about his wearing of a union button. Respondent's first-shift machine operator Alfred P. Sellars testified that on the afternoon of September 9, he (like other employees) was wearing a union button with "Vote" on it. Plant Manager Gross approached Sellars at his machine and asked him "what it meant." Sellars replied that "it meant exactly what it said." Gross, who was serious and "had a shocked look on his face . . . stood there approximately a minute and walked off ." Before this DIXISTEEL BUILDINGS, INC. happened, Sellars had observed Gross to walk over to employees Wade and Luken, who were also wearing union buttons. After Gross spoke to Luken, Luken removed the button. However, there was no testimony-through Sellars, Wade, Luken, or otherwise-as to what if anything Gross said to cause Luken to remove his button . There is no contention that the wearing of union buttons in any way disrupted or interfered with production or any factory work or was for any other reason improper. On direct examination, Plant Manager Gross conceded the accuracy of Sellars' account of the foregoing episode. I can perceive nothing unlawful about Gross ' actions in the specified regard . In view of the nature of the described incident and the absence of proof from which it may be inferred that it was of a coercive character, I find that it has not been established, as alleged in the complaint, that in the Hannibal plant on September 9 Respondent's Plant Manager Ralph Gross interrogated an employee in violation of law concerning his wearing of a union button. 25. September 9 (Kendall) The complaint (para. 5NN) additionally alleges that, also 411 in the plant on September 9, another employee was interrogated concerning his wearing of a union button, this time by Respondent's Foreman Kenny Kendall. Testimony of the employee in question, Respondent's loader Charles Harold Lear, establishes that on the afternoon of September 9 he was wearing a union button as were other employees. Observing Lear to be wearing the button, Foreman Kendall remarked to Lear on the loading dock, "You don't have your name on yours." Kendall did not testify. I find that it has not been established that, as alleged, on or about September 9 Respondent's Foreman Kenny Kendall interrogated Lear or any other employee concern- ing the wearing of a umon button. 26. Statistical recapitulation of "independent" 8(a)(1) violations found Table I is a recapitulation of findings here made concerning Respondent's "independent" violations of Section 8(a)(I) of the Act. Table I Respondent ' s "Independent " Violations of Section 8(a)(1) Complaint Par(s) Decision Sec. 1969 or Approx.Date Substance 33/ Finding(s) 33/ 5B IIIB1 3 --28 F F: Found 5C A A: Found T T: Found 5A IIIB2 3--29 S Not Found 5D IIIB3 5 --21 A A• Found T T: Found 5E IIIB4 6 -- 16 I Found 5F IIIB4 6 --26 F F: Found T T: Found 5H IIIB6 7 -- 1 I Found 5J IIIB8 7 --3 I Found 51 IIIB9 7 --5 I Found 5T IIIB11 8--11 I Found 5K IIIB12 8--11 F Not Found 5L IIIB13 8--11 5M I I: Found 5N T T: Found in part 5U IIIB14 8--12 5V I I: Found 5W A A: Found 5X F F: Found 5y T T: Found 5Z IIIB15 8--14 5AA I I: Found 5BB A A: Found 5CC F F: Found 5DD T T: Found 50 IIIB16 8--15 5P 5Q I I: Found 5R A A: Found 5S T T: Found 1 Footnote 33 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Complaint Par(s ) Decision Sec. 1969 or Approx. Date Substance 33/ Finding(s) 33/ 5EE 5FF IIIB17 8--15 I F T I: Found F: Found T: Not found 5GG IIIB19 8--28 I Found 5HH 511 IIIB20 8--29 T A T: Found A: Found 5MM IIIB21 9--2 I Found 5JJ 5KK IIIB22 9-5 I A T I: Found A: Found T: Found 5LL IIIB23 9--8 F T F: Found T: Found 500 IlIB24 9--9 I Not found 5NN IIIB25 9--9 I Not found Summary Total "Independent" Sec. 8 (a)(1) Violations Found : 36 Within "critical period" 34/: 27 Not within "critical period" 34/: 9 Total Separate Incidents Involved: 18 Within "critical period: 34/: 13 Not within "critical period" 34/: 5 C. 8(a)(3) Violations The complaint alleges two violations by Respondent of Section 8(a)(3) of the Act. These involve its employee Harry Rouse and its former employee Terry Coons and will be separately considered. 1. Harry Rouse It is alleged ( Complaint, paras. 6A and D) that on or about August 7 Respondent laid off its employee Harry Rouse because of his union or protected concerted activity. The proof establishes that Harry Rouse has been in Respondent's employ at its Hannibal plant for about 3 years as a first-shift welder. There is no suggestion that the quality of his work has at any time been unsatisfactory. It is clear that Rouse was an employee spearhead and indeed probably the consistent prime mover of union organizational attempts at Respondent's Hannibal plant. This involved organizational activity by Rouse in connec- tion with no less than three different unions-the Ironworkers, the Steelworkers, and finally Sheet Metal Workers, the last named being the Charging Party herein. Thus, it was Rouse who obtained Ironworkers union cards and solicited fellow employees at the Hannibal plant to execute them. This was around the end of 1968 or beginning of 1969. When this attempt to organize the Hannibal employees under the Ironworkers failed, in (according to Rouse) "the early part of `69 . . . I contacted the Steel Workers to organize a union in the plant. I went to a friend of mine in Hannibal, he give me the name of the 33 A: allurement or promise of employment betterment for repudiation of union or cessation of collective activity F: threat or warning of futility of union representation or collective activity 1: interrogation S: surveillance Steel Worker agent there at Hannibal. I got cards from him, took them out to work and passed them out at break time and before going to work and at lunch hour. I think it was either 10 or 11 cards I received back." Rouse also met with the Steelworkers St. Louis representative and attended organizational meetings between the employees and Steelworkers. Rouse's attempt to organize the plant through Steelworkers commenced in early March. However, this organizational attempt also, like Rouse's earlier venture through Ironworkers, proved abortive, and Rouse de- stroyed the union cards he had solicited. Thereafter, in early May, contact was established between the Sheet Metal Workers, Charging Party herein, and Rouse, in still another attempt to organize the Hannibal plant workers for collective bargaining. Rouse informed the Sheet Metal Workers representative, Paul F. Stuckenschneider, of the unsuccessful previous attempts to organize through Iron- workers and Steelworkers. After signing his own card to join Sheet Metal Workers, on May 5, Rouse actively solicited other employees to join, obtaining a substantial number of signed union cards and turning them in to that Union. Rouse also attended Sheet Metal Workers organiza- tional meetings, distributed its literature in the plant, and (during the period of his suspension, to be described) passed out its handbills outside of the plant. He was a member of the Union's contract committee and attended 4 of its meetings; the purpose of this committee was (in Rouse's words) "to get ideas from some of the employees to draw up a contract which to present to the company for negotiations." He not only spoke to "about all" of the dayshift employees, but also some of the nightshift employees. No employee was more active than he in soliciting and obtaining union members. Further, as T: threat or warning of economic detriment in event of unionization or continued collective activity (Note: : some threats, here referred to in the singular, were multiple.) 34 "Critical period" refers to time between date of collective bargaining demand (July 3) and date of Board-conducted collective representation election (September 9). DIXISTEEL BUILDINGS, INC. credited Testimony of Union Representative Stucken- schneider establishing some ... employees [solicited directly by the Union] .. . would not make any kind of a move until they talked to Harry Rouse. . . . from the very beginning Harry [Rouse] was our chief in-plant organizer. Harry secured many of the authorization cards that were signed inside the plant, or elsewhere. He turned cards in to us continuously. Harry would pass the word around for meetings. Harry would line up a few committee people with whom we maintained contact with throughout the campaign. In fact, Harry would contact the people. Harry contacted most of the people that we had on the committee [with Rouse], the activity committee that we had throughout our organizational campaign. Corroborating Stuckenschneider, Union Representative Todd credibly and without contradiction characterized Rouse as "our No. 1 supporter in the election campaign at Dixisteel. Rouse was always first and foremost in helping us in our unionizing activities"; and that ". . . without any question in my [Todd's] mind," Rouse was "the employee .. . in the plant who was the most active of all the employees with regard to the organizational campaign of the Sheet Metal Workers Union." Todd summed up Rouse's specific union organizational activities to include, in addition to religious attendance at union organizational 35 The testimony is as follows Q [by counsel for General Counsel ] When did you first hear that Mr Rouse was the spearhead behind the Steelworkers'? A [by Gross ] I can't recall a specific date Q Still about in May? A I knew before that Q You knew before May that he was the spearhead behind the Steelworkers? A. I am sorry, I misunderstood you , I thought you said Steelworkers Q I am sorry, Sheet Metal Workers A I would say it was during the month of May that I learned of Harry's interest in it, again, that was no secret Q Now, back again to the Steelworkers, now, to clear up any confusion, when did you hear that he had been the spearhead behind the Steelworkers'? A Not until after that, whole transactions had taken place and it was a matter of history I discovered that, as a matter of fact, my first actual knowledge of it was after the Sheet Metal Workers had come to town Q You indicated that after the Sheet Metal Workers came to town, you found out that Harry Rouse was involved with the Steelworkers and found out that he was involved with the Sheet Metal Workers, is that correct? A Yes Q And you were, I believe you told [NLRB agent] Mrs. Smith, you were kept informed of the meetings and what was said, is that correct'? A Pretty much, their handbills kept me fairly aware of what was said f ! t ♦ t Q. Who kept you informed of what was going on at the meetings'? A . one morning I came in, this happened on two different occasions, I came in my office and on my desk there was a note, and to this day I don't know who wrote the note, to the effect that a meeting had taken place Q Anonymous notes were left on your desk? A Yes, sir Q And you don't know who wrote them'? A No, sir, and I didn't inquire I also had verbal reports from the foremen Q Was the foreman reporting to you who was giving out this 413 meetings: placing or distributing union literature in the plant; reporting daily, on his way out of the plant, at the main gate in plain view of the plant offices, to union representatives on that day's organizational activities among employees in the plant; attending group organiza- tional meetings at the union representatives' motel; supplying names and addresses of employees, with travel directions, to union representatives; accompanying a union representative on some house calls; attending the NLRB hearing in St. Louis on August 6; collecting and handing in union authorization cards to union representatives; receiv- ing additional supplies of union authorization cards from union representatives; turning in to the Union more signed union authorization cards than any other employee; membership on and attending meetings of the employees' in-plant union organizational committee; and membership on and participating in activities of the union contract committee. It is apparent that these manifold organization- al activities on Rouse's part could not have escaped Respondent's eyes and ears. There is no question that Respondent was well aware of Rouse's preeminent role in the organizational activities involving Steelworkers as well as the Charging Party here (Sheet Metal Workers): Hannibal Plant Manager Gross admits it.35 Indeed, at one point during direct examination, asked whether he was "aware of Mr. Rouse's participation information'? A No, sir I don't know to this day who wrote those notes Q. But in the notes or from your foremen or whatever, it did get back that Harry Rouse was the spearhead and Harry Rouse was doing the talking at the meetings, isn't that correct9 A Yes On one occasion it was reported to me by a foreman that Rouse had handed out cards in the shop It would not have been a report except for the fact this was a marginal thing of whether or not it was or not a work time, and because of the fact it was a marginal thing, I chose to dismiss the comment and nothing was done about it, but that was reported to me Also it was reported to you that Mr Rouse had said certain things and what he said was reported, isn't that true? MR. BACHELLER [Counsel for Respondent ] I want to object to the question as being too vague MR. BROOKS [Counsel for General Counsel]. I dont think it is vague at all TRIAL EXAMINER Overruled Q. (By Mr Brooks) Would you please answer the question'? A Repeat it, please Q Isn't it true that things were reported to you of what Mr Rouse had said regarding the union'? A I can answer that question no Things had been reported to me of things that Mr Rouse had said, specifically I can give you an instance of one that I can recall. Q Now, just answer my question Wasn't it reported to you that Mr Rouse had been talking about the union and wasn't it reported to you what he had said about the union? A What he had said about the union'? Q Specifically, Mr Gross, when you talked to [NLRB agent] Mrs Smith of our office, didn't you tell her that it had been reported back to you that Mr Rouse had been talking about the union and it had been reported back to you what he had said9 A That could have happened, yes Q. Isn't that true'? I presume it was true. Didn't you tell Mrs Smith than A If I told Mrs. Smith that as a fact, then I would have to say it is a fact I don't at this point recall it. To answer your question or to elaborate further on it, Mr Brooks, it happens that between 11 30 and 12 o'clock the men in the plant have their lunch in an area that is designated for that, which there are lunch tables all set aside, several of the foremen eat at the same time and the discussion of the union was never, to my knowledge, a matter of a secret at that time and it (Continued) 414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the union," Gross' reply was, "Yes, sir, very much aware." On February 10, Rouse was involved in an industrial accident resulting in a significant injury to his coccyx36 and 17 consecutive days' loss of work and causing him substantial continuing residual pain.37 This matter is mentioned because it is central to Rouse's later suspension, to be described, here under consideration. Although Rouse was permitted by his physician to return to work on February 27 with a restriction against heavy lifting, he was not then nor later medically discharged but has continued to have medical problems resulting from that injury, among them what he described as a burning and stinging sensation around the traumatized area. A month or two after his return to work-i.e., around the beginning of April or May-during work Rouse sustained a second injury to the same area. Since then pain, at times apparently intense, and other disagreeable sensations ascribed to the twice-trauma- tized area have interfered with his work, particularly on heavy lifting and pushing; involving, as he describes it, his "legs . . . jumping." For these conditions he has sought medical assistance not only in Hannibal but also in St. Louis and has been advised to undergo surgery. He has been medically instructed, among other things, to seek comfort by seating himself on straight-backed chairs on an orthopedic device referred to as a "donut," which he carries around with him and which he was observed to utilize at the trial herein. Respondent's Plant Manager Gross' testimony indicates a high degree of awareness of Rouse's condition, as does the testimony of other Hannibal factory personnel, including, for example, first-shift welder Porter who works "right alongside of" Rouse and who testified that since Rouse's return to the factory following his accident he has observed Rouse to be limping and having "a lot of pain" so that it was interfering with Rouse's work: "He [Rouse] tried to work, but I think his hip was giving so much pain he had to go home lots of times. He couldn't hardly sit down, couldn't hardly walk." Pursuant to notice dated July 22 from the Board's 14th Regional Director, a hearing was scheduled to be held in Representation Case 14-RC-6230 in St. Louis on August 6. On the day before the hearing (August 5), Union Representative Stuckenschneider requested Respondent's Hannibal Plant Manager Gross to excuse Harry Rouse (dayshift) and Monte Graham (nightshift) from work on August 6 for the purpose of attending that hearing since-as testified by Stuckenschneider-"we wanted some employees to attend this hearing who were knowledgeable about the bargaining unit and who had a pretty good idea what was going on there and in there. People we could rely on to possibly give testimony in the hearing if it were necessary. So we decided on Harry Rouse and Monte was discussed openly. Q. And it wasn't a secret how intricately involved Mr. Rouse was? A. Not to my knowledge it wasn't a secret." 36 The coccyx is a triangular bone formed by fusion of the last few vertebrae constituting the terminal portion of the base of the bony segments of the spine, considered by some to be a vestigial tail, and is sometimes referred to as the "tailbone." American Pocket Medical Dictionary 84 (19th ed.); Lewin, The Back and Its Disk Syndromes ch. 37, Graham." There ensued a discussion among Stucken- schneider, Gross, and Company counsel Lowry, wherein, according to Stuckenschneider, Gross indicated willingness to excuse Graham but not Rouse because of the alleged welding workload. Company counsel pointed out that if a subpoena were served, Rouse would have to be excused. When Gross indicated he wanted Rouse to work an 8-hour day, possibly on the second (night) instead of the first (day) shift, Stuckenschneider remonstrated that Rouse could not start the day at 6 a.m., travel to St. Louis, attend the hearing there that day, travel back to Hannibal (in all, a round trip driving distance of about 240 miles), then work until I a.m., and report to work the following morning at 6 a.m. According to Stuckenschneider, Rouse thereupon said, "Well, I will come in and do what I can do"; and Gross then remarked, "Well, we will work it out, go ahead. We'll work it out, just so you put in the hours," and he (Gross) confirmed that Rouse and Graham "are excused." The testimony of Rouse substantially corroborates Stuckenschneider's foregoing account of the circumstances of his being "excused" from work to attend the Board hearing on August 6. According to Rouse, when Plant Manager Gross indicated he "would have to make up the day that I [Rouse] missed": I [Rouse] said that I didn't know whether I would be able to work a full shift, because I would have to leave Hannibal at 6 of a morning to get down there by 9 o'clock and coming back and working from 3:30 until 1 o'clock, and then getting back up again at 5 would make it too hard on me, I wouldn't have much sleep, but I told them that I would put in as much time as I could, which at that time I was planning on working as late as I could that night. There was some discussion about . . . me putting in the full nine hours. And finally, to my understanding with Mr. Gross and Paul [Stuckenschneider] and myself that I would put in as much time as possible.... Paul told Mr. Gross, "I don't see how he could be expected to work until 1 o'clock and turn around and come back in at 6," and Paul stated, says, "How about letting him come back in and put in as much time as he can that night where he can get some sleep, and come back in the next morning at 6," and to my understanding, Mr. Gross said, "Yes." ... He [Gross ] was shaking his head . . . up and down. According to Rouse, during this discussion Stucken- schneider had also reminded Plant Manager Gross about: ... the trouble that I [Rouse] was having with my tailbone at that time that he don't see how anyone could be expected to put in that length of time of being up at 6 o'clock of a morning until 1, and then coming back in again at 6 the next morning, because my tailbone has been bothering me quite a bit. Rouse conceded (as had Stuckenschneider) that Gross at "The Coccyx," pp. 555 et seq. (2d rev. ed. 1957). Rouse testified that his physician referred to his injury as a "cracked ... tailbone." 37 According to Rouse, while attempting to lift a 100 pound steel beam from a machine, it moved and propelled him against the comer of a table which he struck with his "tailbone." "Traumatized coccyxes may produce continuing acute discomfort with lingering intense pain not limited to the coccyx but radiating to neighboring structures, an affliction known as coccygodynia, aggravated by continuing sitting and accentuated by rising." Lewin , op. cit. supra. DIXISTEEL BUILDINGS, INC. first expressed reluctance to excuse him since there was need for welding work to be done, but Rouse also insisted that, when he was finally "excused," the understanding was that upon his return from the St. Louis NLRB hearing he would report to the plant to make up as much time as he could. Plant Manager Gross' version (in essence supported by Company counsel Michael L. Lowry) of the foregoing is consistent with that of Stuckenschneider and Rouse up to the point of what the "understanding" was under which Rouse was "excused." According to Gross, the "agreement with Mr. Rouse was that [upon his return to Hannibal from the St. Louis hearing ] he would work until midnight but not to 1 o'clock. We would not ask him to work that extra hour that we had at that point scheduled." Gross conceded on cross-examination that there was no discussion of "Rouse having to make up the time if he was under a federal subpoena." Also on cross-examination, Gross appeared to qualify his strong testimony on his direct examination concerning a definite "agreement" as above described; on cross-examination, Gross instead testifed that "In my mind at that point there was a meeting of minds; there was no overt statement by Mr. Stuckenschneider or written agreement giving consent, but everybody was in an affirmative mind that the understanding was clear." (Emphasis supplied.) Rouse attended the NLRB hearing in St. Louis the following day (August 6), driving to and from there, a round trip distance of about 240 miles, with fellow employee Monte Graham. After the hearing, Rouse and Graham returned to Hannibal, arriving back between 4 and 5 p.m. after a drive of about 2 hours. On the way back, according to Rouse, he had to make a stop because "My tailbone was bothering me" and giving him "severe back pain." Rouse swore that during the 2-month period prior to this August 6 trip he had not driven a distance of as much as 100 miles. Rouse's testimony, credible in itself and fully credited by me, as to the back pain he was experiencing on August 6 from or during the 4-hour round trip drive to and from St. Louis, is corroborated by the testimony of his car companion Monte Graham, who swore that during the ride he observed Rouse to be in apparent discomfort and pain as he sat and shifted his position in the car. After returning to Hannibal and dropping Graham off, Rouse returned home, changed into workclothes, and went to the factory to work, even though his back pains had "got worse." For this, Rouse took several medically prescribed "pain pills." Rouse's timecard shows that he reported to work at the plant at around 4:30 and left at around 7:30 p.m. on August 6. Between 5 and 5:30 he told nightshift Foreman Ed Cunningham that "I [Rouse] didn think I would be able to make it, the full shift, that my tailbone was bothering me quite a bit.... Ed Cunningham said all right, but to notify him before I left. I told him I would." At around 6 or 6:15, Rouse was summoned into Plant Manager Gross' office, where (according to Rouse): Mr. Gross told me that if I went home I was jeopardizing my job, and I told him that I would have to 38 On the way home, he stopped off for a few minutes to notify Union Representative Stuckenschneider that Gross had told him that "if I [Rouse] 415 be jeopardizing it, because my tailbone was bothering me too bad to work a full shift.... He told me that I agreed to put in a full shift, and I told him that we made an agreement on that I would put in as much time as I could. . . . He told me that he could fire me if I went home without permission.... We talked about it for a while, and I agreed with him that I would come back starting the next evening and put in as much time as I could to make up for the time lost.... He said that it would be greatly appreciated. Rouse described his welding work on the steel beams as involving bending and lifting, as well as pulling and pushing, some apparently heavy in nature. As credibly testified by Rouse, he could not work beyond 7 o'clock because of severe pain in the "tailbone," which "was hurting and my legs were bothering me and my legs were hurting. It was hurting me even bend over, and we had to push these beams over, which we had to stand up and weld a certain amount, and then push them over, which the crane would catch and lay them down and weld more." Rouse therefore notified Foreman Ed Cunningham that he could not continue, stating, "My back is hurting, I am going home regardless." When Cunningham thereupon "brought it up, that Mr. Gross said that it would be my job," Rouse replied, "I can't help it, I'm going home." He went home,38 sat in a hot tub for 45 minutes, and then to bed. According to Rouse, there were then 6 welders (including himself) on duty, working on only 4 steel beams to be welded; at the normal rate of I to 2 welding man-hours per beam, this would indicate a total of 8 man-hours of welding work on hand to be accomplished by a crew of 6 welders. Hannibal plant nightshift Foreman Samuel ("Ed") Cunningham, who impressed me as a highly credible witness, testified that after Rouse had been at work a half hour or hour on the afternoon of August 6, Rouse "told me that his back and stuff was bothering him, and he was sick, and he would like to go home at 7:30. I said, yes, sir, you can go." Not being able to locate Plant General Foreman Baughman to let him know, but seeing Plant Manager Gross, Cunningham told Gross, who "said that Mr. Rouse had obligated himself to work the eight hours." Cunningham was told by Baughman, who had joined them, to "go back and talk to Harry [Rouse] to see if we could get him to stay his eight-hour shift." Cunningham did so, finding Rouse chipping or cleaning flux off beams in the welding process. Cunningham reported to Rouse what he had been told. At around 7:30, Rouse left, after notifying Cunningham that he was "going on leave, regardless of whatever happened." Cunningham testified that when he had given Rouse permission to leave earlier in the afternoon, he had done so because he believed Rouse's complaints of pain, and that so far as he (Cunningham) was concerned nothing had occurred between then and the time Rouse left to cause Cunningham to change his mind. According to Cunningham, although at this time there was welding work to be done, with the welders not "caught up," they were "not to a great extent" behind and no farther "behind [than] many other times." And Cunningham testified that the consequence of Rouse's leaving when he went home that I was jeopardizing my job." Stuckenschneider credibly swore that on this occasion he observed Rouse to be "in terrific pain." 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD did was simply that Rouse's work was "done by somebody else that night . . . so that actually, as of the end of the shift, the work had been done." According to Plant Manager Gross' version of the foregoing, it was not Cunningham but Baughman who informed him that Rouse "wished to be excused at 7:30 because his back was giving him trouble . Mr. Cunningham [who, according to Gross, was with Baughman ] substantiat- ed this." Thereupon, "I [Gross ] told Mr. Cunningham directly that I wasn't going to accept Mr. Rouse leaving at 7:30 and Mr. Cunningham indicated that he agreed to excuse Mr. Rouse, and I told Mr . Cunningham to go back to Mr. Rouse and tell him that he was not excused, that if he wished to discuss it with me he could ." When Rouse came to see Gross, according to Gross: I [Gross ] told Mr. Rouse that I would not accept the excuse of his sore back as a valid excuse for leaving work, that he should have foreseen that contingency when he made a commitment to me on the previous day that he would work until 12 o'clock.... When he made the commitment to me on Tuesday, or the 5th, that he was going to go to St. Louis and return knowing the condition of his back, it seemed to me that at that point was the time to indicate that he had back problems. He did not indicate this to me on August 5.. . . Mr. Rouse at this point asked if I expected him to work with a sore back I explained to Mr. Rouse at this point that if he left work that he was doing so without permission and because this was a violation of company rules that he was putting his job in serious jeopardy." According to Gross , he (Gross) left the plant at around 6:45, about three-quarters of an hour before Rouse left that night (August 6). Gross concedes that the only "specific consequence, in terms of welding , that ensued because Mr. Rouse did not work beyond 7:30 in the evening on August 6" was "Simply that that work [i.e., the work that Rouse was expected to do] had to be done by somebody else." On the following day, August 7, although his back was "still bothering" him, Rouse reported in on his regular dayshift as usual, at 6 a.m. In view of the apparently heavy lifting, as well as bending, pulling, and pushing, involved, his foreman "took me [Rouse] off the [steel ] beams and had me on thinwall," and Rouse worked a full 9-hour shift until 3:30 p.m. Shortly before leaving , however, at 3 p.m., he was summoned to the plant office, where Plant Manager Gross informed him that although he "could be fired for going home without authorization ," he was nevertheless only being given a 3-day layoff on suspension without pay. (Rouse was also not paid for the time he missed the previous day, August 6.) According to Rouse, he reminded Gross "that it was to my [Rouse's] understanding that he [Gross ] agreed that I could come back that evening [August 6 ] and put in as much time as possible ," but Gross ignored this remark. On the next day (August 8), Gross wrote Rouse a letter stating: Dear Sir: On Wednesday, August 6, 1969 you left your job at approximately 7:30 P.M. after being advised that if you did so that you would leave without permission. Since leaving the-job without permission is a violation of company rules, you were suspended from work for three days. Your suspension commenced Friday, August 8, 1969 and will continue through Saturday, August 9, 1969 and Monday, August 11, 1969. Let me take this opportunity to further advise you that future action of this sort will result in suspension, subject to discharge. At the hearing, Plant Manager Gross admitted that he had made the following signed statement to an NLRB agent: On August 7 around 2 :45 p.m. I called Harry [Rouse ] in and told him he was suspended for three days for walking off the job without permission, and that his conduct was grounds for discharge but we were not discharging him in light of all the factors we had discussed. I meant that because he had contended that he had an injury I wouldn't fire him over it. He made no verbal reply whatsoever and left the office. However, after conceding that he had so informed the NLRB agent, Gross at the hearing then stated, "That's what I told [NLRB agent ] Mrs. Smith ; that is not what I told Mr. Rouse"; and that he was "telling [NLRB agent] Mrs. Smith the truth" which he "meant" that he was not "going to discharge [Rouse on August 7] because [I, Gross wasn't] sure whether or not he had an injury . . . That's what I told Mrs. Smith," and agreeing also "that [is] what [I ] am telling [you] today." Denying that Rouse's union or organizational activity was the reason for or played any role whatsoever in its suspension of Rouse under the circumstances which have been detailed, Respondent contends that its action was taken because there was much welding to be done on the day (August 6) in question , that Rouse did not keep his word to work a full shift on his return to Hannibal from the NLRB St. Louis hearing, and that Rouse left work without permission when it did not believe him about his back pain. With regard to the nature and amount of welding work on hand on August 6 in relation to the available workforce, the record is not altogether definitive , there being much evidence, some conflicting and equivocal, on both sides. It may be assumed for present purposes, however, that there was such work on hand to be done on the date in question and that Rouse's services were not only desired but needed. Nevertheless, it is the fact-explicitly conceded by both Plant Manager Gross and Foreman Cunningham, as has been shown-that the only consequence of Rouse's not working the entire shift after his return from the St. Louis hearing was that the work which he would have done was simply done by someone else. With regard to Rouse's not working the full nightshift on August 6 after his return from the Board hearing at St. Louis, the circumstances of his being "excused" from his shift (i.e., dayshift) for that purpose, as well as the circumstances of his travel to and from St. Louis, and of his reporting in to work on the nightshift for 3 hours, have been detailed. It is the fact that Rouse did report for work that night notwithstanding the flareup in his painful affliction. It is also the fact that thereafter, when he informed nightshift Foreman Cunningham that he felt he could not work the entire shift, Foreman Cunningham excused him for that reason, only to be overruled by Plant Manager Gross DIXISTEEL BUILDINGS, INC. personally. Gross assigns two reasons for this overruling-namely, the amount of welding work on hand, and his intention to hold Rouse to his "promise" to work that night, notwithstanding Rouse's long and harrowing day. As to the latter, Gross indicates that he (unlike Cunningham) did not believe Rouse's complaints of pain. Insofar as the welding workload on hand is concerned, comment has already been made thereon; and it would certainly seem that Foreman Cunningham, directly in charge of and familiar with the shop operations, had first- hand knowledge of the amount of welding on hand to be done when he excused Rouse, whose work-as conceded by Gross as well as Cunningham-was simply done by somebody else. Concerning Rouse's complaints of severe pain and inability by reason thereof to continue working through the full nightshift of August 6, it is the undeniable fact that Rouse had sustained a substantial, painful injury to the lower portion of his back, with lingering sequelae and exacerbations or "flareups" precipitated among other things by prolonged sitting, such as was necessarily involved in his 240-mile, 4-hour round trip drive to St. Louis that day. Rouse's testimony regarding his pain sensations in connection with the sequelae of his back injury, credible and credited by me though it is, is by no means the only evidence thereof. It is undisputed that he missed 17 consecutive days from work following his injury and that he was and still is under medical care. Other employees credibly testified to their personal observations of Rouse's apparent pain, including on the very date in question, and its interference with his work capability. Respondent itself was well aware of Rouse's accident and condition, on occasion restricting him to lighter work. Respondent's Plant Manager Gross conceded that Rouse ..was regular in his work attendance during the time he returned in or around February [ 1969 ] after his injury and to this date in August [i.e., August 6, 1969]." Gross states that, while not a physician or otherwise demonstrably expert or knowledgeable on the subject, the basis for his disbelief of Rouse's complaints on August 6 was "that he [Rouse] hadn't missed any time for the period of .. . February [27] to August 6 because of his back injury." This by no means establishes a plausible basis for rejecting out of hand Rouse's complaints on August 6, considering Gross' admitted knowledge that Rouse was still under medical care, and considering Rouse's completion on that very day (August 6) of an unprecedented 4-hour, 240-mile automobile trip, with the purpose and circumstances of which Gross was also thoroughly familiar. As to Rouse's alleged "promise" or "agreement" of the previous day (August 5) to work on the nightshift on August 6 after his return from St. Louis, I am satisfied on the basis of my demeanor observations and the evidence as a whole that 39 In this connection, I reject as utterly unworthy of belief the testimony of Respondent's welder James T Rowland to the effect that on August 5, when Rouse told him after returning from Gross' office that he was going to St Louis the next day "to verify cards that had been signed by members" and had agreed to "work his shift" on his return, he at the same time informed Rowland that "I don't intend to work eight hours " Rouse's testimony shows he did not say anything about not intending to work on his return I have no hesitation in crediting Rouse in preference to Rowland, who impressed me as evasive and untruthful Among other 417 Rouse in fact understood and agreed, in effect, to report in and work as long as he could on the night shift; perhaps Gross understood or interpreted otherwise. However, in any event, whether or not there was a firm "promise" or "agreement" by Rouse on August 5 to work the full nightshift after his return from St. Louis on August 6, it obviously was subject to the implied common sense conditions that he would be on hand and that he would be capable of working. Even any "promise" or "agreement" on his part would have had to yield to those assumptions or conditions, whether or not expressed. Thus, Gross himself conceded that Respondent does not expect sick employees to work; that he would not have "expected him [Rouse ] to work for you [Gross] just because of a commitment he made to you the day before when he did not know that he was going to have back trouble"; that he had never "known Harry Rouse to lie . . . in order to get off work"; that, if employee Askew (instead of Rouse) on August 6 had asked to go home because of back pain, Gross would have authorized it; and that similarly Gross would have allowed Rouse to go home on August 6 "if Mr. Rouse had not gone to the [NLRB] hearing on that date and had not entered into this agreement and had come to you [Gross] on August 6, told you he was hurting and asked you if he could leave." In view of Gross' achnowledgment that Foreman "Cunningham has authority on the night shift to allow employees to leave early without checking with [me, Gross ]," this being true "even if production is rushed and there is a big backlog of work," the exceptional nature of Gross' action in overruling Cunningham, particularly when there was concededly no compelling reason for any particular welder to work that night ( since, as concededly in that case of Rouse, his work was simply done by another) nor any untoward result from his leaving early, strongly suggests that the reason advanced was not the real reason but that Rouse was a marked man. So indeed he was, but only because he was the acknowledged "spearhead" of the unionization drives which Respondent was bitterly resist- ing. Where an employer's disciplinary action in issue "involves the `key' employee in an organizational drive, it may supply shape and substance to otherwise equivocal circumstances." N.L.R.B. v. Davidson Rubber Company, 305 F.2d 166, 169 (C.A. 1). See also, N.L.R.B. v. Nabors Co., 196 F.2d 272, 275-276 (C.A. 5), cert. denied 344 U.S. 865. Under the described circumstances , Rouse's reporting to the plant for the second shift after his grueling day to and from St. Louis is strong testimonial to his good faith, just as his foregoing of his pay for the full shift supports his plea that he really could not work.39 In view of the record as made, under the circumstances shown, Gross' insistence to Rouse, when the latter remonstrated with him over not being permitted to leave on the night of August 6 when he was truly unable to work, things, Rowland denied informing Gross or the Company about this and blandly swore he came to the hearing without "hav[ing] the least idea" what he was expected to testify to, swearing that he had not even discussed it with counsel who called him to the witness stand . (To the credit of counsel, it should be noted that he, counsel, apprised the Trial Examiner, after the witness was excused , that he had indeed interviewed Rowland before the hearing.) Rowland also testified that he returned from vacation in order to serve without pay as Respondent's observer at the September 9 Board-conducted election 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "that he [Rouse] should have foreseen the contingency or the possibility that his back was going to bother him before he ever agreed to make the work up ; and, second, I didn't think he was fulfilling his agreement to me , his obligation that he had agreed to the previous day," has a frivolous ring and impresses me as plainly not the true reason why Rouse's reasonable ! requests was, adamantlyi • rejected nor the true reason why he was thereafter suspended for 3 days without pay shortly before an upcoming Board election. Respondent's "explanation" to Rouse for his suspension is further thrown into question by Gross' indication of his own uncertainty about Rouse's illness, on the occasion when Gross subsequently stated to the Board agent that he (Gross) told Rouse that "his conduct was grounds for discharge but we were not discharging him in light of all the factors we had discussed. I meant that because he had contended that he had an injury I wouldn 't fire him over it." Yet if, as Gross recognized, Rouse's inability to work because he was sick was no reason for discharging him it was also no reason for suspending him. 40 On the record here presented, Respondent had no basis whatsoever for believing, and I find that it did not in fact believe, that Rouse was shamming or feigning illness and inability to continue work throughout the night shift on August 6. I am also not uncognizant, in attempting to unravel the confused skeins of what was really at the core of Respondent's startling 3-day suspension of union ringlead- er Rouse under the circumstances which I have painstak- ingly detailed, the credited testimony of Porter that in the plant office in mid-August Respondent's former plant foreman, Monical, identified "Harry Rouse [as] being the ringleader, getting paid by the union, by the guys who were trying to get the union in"-undisputed by Monical; as well as the credited testimony of Hooper that in mid -August Respondent's former plant foreman, Monical, told him that "Harry Rouse was so mixed up with the union that he [Rouse ] was already gone. He [Monical ] said if the union would get in there would be a bunch of people that would be laid off, Harry Rouse for sure"-also wholly undisputed by Monical. Upon the total record, the reasons advanced by Respondent for its suspension of Rouse simply "fail[s] to stand under scrutiny" (N.L.R.B. v. Dant, 207 F.2d 165, 167 [C.A. 9 ], and cases cited). In the total posture of the record presented , including careful evaluation of testimonial demeanor , I am fully persuaded and therefore find that the reasons advanced by Respondent for its 3-day payless suspension of Rouse in mid-August were pretextuous and were not the true reasons at all. I find that at least one of the true reasons , and in fact the true predominating reason, was Rouse's continued preeminence in union organizational activities protected by 90 It should be noted in this connection that numerous employees, among them Brown, Graham, Green, Hastings, Hooper, Lear, and Porter-including two welders (Hooper on the dayshift and Brown on the nightshift)--testified credibly that they had never been asked to make up any time missed from work, nor to their knowledge had any employee other than Rouse and then only on the occasion (August 6) described. Indeed, at one point Gross himself acknowledged that he had "never" required employees excused from a shift to make up the time. 41 "The Board, of course, may base its finding on circumstantial as well as on direct evidence . Intent and motive are subjective and often may be proved only by circumstantial evidence . N.L.R.B. v. Melrose Processing Co., 351 F.2d 693, 698, 60 LRRM 2328 (8 Cir. 1965). Illegal motive has the Act from such reprisal. As the acknowledged preemi- nent union organizational spearhead among its Hannibal plant employees, Rouse was an increasingly painful thorn in Respondent's side, particularly considering the potential- ly imminent successful unionization indicated by the apparent or feared extent of the Charging Party's representational strength in this third most recent unioniza- tion drive. To retaliate against Union spearhead Rouse in the way that Respondent did and at the time that it did-on the day he attended a Board representation hearing shortly before the upcoming Union election-was to signal to the employees in unmistakeable terms the type of retaliatory penalty that attended participation in the unionization activity which Respondent had decried and was openly inveighing against. The totality of circumstances involved in and surrounding Respondent's suspension of Rouse persuades me, and I accordingly find that, as alleged in the complaint, that suspension was in fact because of Rouse's Union organizational and concerted activities for collective bargaining or employees' mutual aid and protection. Cf., e.g., McGraw-Edison Co. v. N.LR.B., 419 F.2d 67 (C.A. 8)41; N.L.R.B. v. Dazzo Products, Inc., 358 F.2d 136 (C.A. 2); N.L.R.B. v. Lipman Brothers, Inc., 355 F.Zd, 15 (C.A. 1); N. L. R. B. v. Longhorn Transfer Service, Inc., 346 F.2d 1003, 1006 (C.A. 5); N.L.RB. v. West Side Carpet Cleaning Co., 329 F.2d 758, 761 (C.A. 6); N.L.R. B. v. Solo Cup Company, 237 F.2d 521 (C.A. 8); Texas Aluminum Company, Inc., 181 NLRB No. 15. 2. Terry Coons The complaint (para. 6B, C, and D) alleges that Respondent also discharged Terry Coons, on or about August 26 and has not since reemployed him, because he engaged in Union or other protected concerted activity. Coons, now a college freshman, was hired on July 23 (before starting college the following fall) as a temporary summer "helper" on the second shift (3:30 p.m.-1 a.m.), working mainly on the loading dock. He was discharged on August 27 or 28 with a document stating that he had been "Discharged because of excessive unexcused absenteeisms. Temporary employee," and was not recommended for rehire. His total length of employment with Respondent was thus only about 1 month. The history of Coons' short tenure and discharge is in many material aspects undisputed. Coons testified that soon after starting to work on August 26 (Monday), he felt ill and informed Night Foreman Cunningham that "my stomach was bothering me and I felt like I was getting a touch of the flu." Cunningham thereupon excused him. That was around 5:30 p.m. Coons did not come in to work been held supported by a combination of factors, such as 'coincidence in union activity and discharge', N.LR.B. v. Council Mfg. Corp., 334 F.2d 161, 164, 56 LRRM 2735 (8 Cir. 1964); 'general bias or hostility toward the union', N.LR.B. v. Superior Sales, Inc., 366 F.2d 229, 233, 63 LRRM 2197 (8 Cir. 1966); variance from the employer's 'normal employment routine', N.LR.B. v. Melrose Processing Co., supra, 351 F.2d at 698; and an implausible explanation by the employer for its action, N.LR.B. v. Harry F. Berggren & Sons, Inc., 406 F.2d 239, 245-46, 70 LRRM 2338 (8 Cir. 1969), cert. denied, 396 U.S.... See Mead & Mount Construction Co. v. N.LR.B., 411 F.2d 1154, 1157, 71 LRRM 2452 (8 Cir. 1969). .. . McGraw-Edison, supra. All of the factors to which the court there called attention, and more, are present here. DIXISTEEL BUILDINGS, INC. 419 on the 2 following days, August 26 and 27 (Tuesday and Wednesday), because of what he calls a "stomach .. . upset" not requiring medical attention. Coons concedes that although he has a telephone at home, he did not telephone or in any other way at any time communicate with the plant to let them know he would not be in to work. He explains this failure, which is a violation of plant written requirements (with which he claims to have been unfamil- iar), by stating that since he had been excused by Cunningham on Monday evening "I figured that . . . any other day that I was absent, it wouldn't be necessary for me to call in because they would assume I was sick." Coons concedes that where he worked as a helper on the loading dock there was work to keep two men (of whom he was one) busy. As has been indicated, Coons claims unawareness of any requirement that an employee intending to absent himself from work notify the plant. His claim of ignorance is sharply disputed in various ways. To begin with, there is no question that an employee handbook, which it is Respon- dent's practice to distribute to new employees (including, according to Plant Manager Gross, temporary summer employees such as Coons), contains the following instruc- tion to employees: Your Obligations .. . When a shift begins and at all other starting and stopping times each employee is required to be at his designated job place ready to work. It is the duty of an employee to report for his scheduled shift unless he has arranged in advance with his supervisor to be absent. If unavoidably prevented from reporting, the employee must notify the company as far in advance of his shift as possible and give satisfactory reason for his absence. If unable to give the proper timely notice referred to above, the employee must present an acceptable excuse to the company for failure to do so. Since Coons denies he received a copy of this handbook or otherwise saw this particular portion of it-he concedes that early in August he familiarized himself with the portion thereof dealing with wages- and Respondent was unable to provide explicit proof of the delivery of a copy of the handbook to Coons, the handbook itself may be regarded as inconclusive on the issue of Coons' knowledge of the existence of the rule. However, this (August 26-27, immediately preceding his discharge) was not the first occasion on which Coons absented himself from work without notifying the plant, and there is credible proof that on the earlier occasion he was expressly alerted to the requirement. Indeed, Coons' 42 On cross-examination, after first indicating he did not "get to a telephone . . . until I got to my girl friend's house . . . [at] approximately 4:30," Coons thereafter also stated , "I believe the first time I was near a telephone was approximately 8 o'clock when I got home." He conceded, however, that not even then did he "call the plant ... to say that [I] had not been able to get to a phone before this." 42 From the trial transcript: TRIAL Exn,ut4ER : Had you been to East Moline visiting relatives? THE WITNESS [Coons]: Yes, sir. TRIAL Ex wINER : Is that when the car broke down? THE WITNESS : No, sir. The car broke down about five miles east of New London here. TRIAL EXAMINER : What did your having to go to East Moline to own account of that earlier absence indicates recognition, if not knowledge, on his part of such a requirement. The earlier episode of absence occurred on August 11, when Coons remained away for his entire 8-hour workshift because (according to Coons' testimony) "my car quit on me on a country road" while "taking a girl home" en route to work "just about an hour before I was to report to work ... and I couldn't get to a telephone." Coons conceded, however, that at no time during the remainder of the day, either, did he telephone the plant or otherwise notify his Employer that he would not be in to work.42 On the following day (still according to Coons' testimony), while at work in the factory, General Foreman Baughman ap- proached him and said, "We missed you yesterday" and asked him where he had been. Coons told him, " I was in East Moline, Illinois, visiting some relatives. " 43 At this time, Coons had only been in Respondent's employe about 2 or 3 weeks. According to testimony of Respondent's General Foreman John Baughman, whom I credit in this aspect, on this occasion, when he spoke to Coons after the latter's return to work on August 12, Baughman "explained to him that he was supposed to call and let us know when he couldn't be there." Although Coons denies Baughman told him this, not only on comparative testimonial demeanor do I prefer Baughman's version, but it seems quite unlikely that, after an unexcused and unexplained absence by an employee, the General Foreman would merely chat amiably with him without reminding him of the standing requirement that the plant be notified of a projected or unavoidable absence. Furthermore, Coons' own testimony on direct examination that when he failed to report to work on August 11 when "my car quit on me on a country road" while "taking a girl home" on his way to work, "I couldn't get to a telephone" (emphasis supplied), appears to betoken recognition on his part of the necessity, if not requirement, for calling the plant to notify them he would not be in.44 When, after his 2-day absence on August 26-27 without calling in, Coons showed up for work on August 28, he was informed by General Foreman Baughman that "it had been two days and we hadn't heard from him . . . I [Baughman] told him that we had already typed up his discharge for excessive absenteeism and that he was no longer em- ployed." The decision to discharge Coons was made by Baughman ; Plant Manager Gross heard about it subse- quently. It is stipulated that Coons was "employed during his entire tenure as summer temporary help, and would be excluded from the [collective-bargaining ] unit. It is further conceded that Coons has at no time since his discharge or visit relatives have to do with your car breaking down the day before? THE WITNESS : Nothing. Coons later explained that he was taking the girl home on his way back from East Moline, and that he arrived in New London (about 10 miles from Hannibal) at 3 p.m. He was due back to work in Hannibal at 3:30. 94 From the trial transcript: Q. [By Respondent's counsel] What difference did it make that you couldn't get to a telephone when your car broke down? A. [By Coons ] I don't know. However, Coons almost immediately attempted to retrieve himself: Well, I thought the company should know why I wasn't at work, why I wasn't coming in. 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD since starting school full time in September after his discharge, sought or been denied reinstatement or reem- ployment at the Hannibal plant; nor has it been offered to him. With regard to his union activity at or in connection with the Hannibal plant, Coons described it as consisting of signing a union card a few days after he was hired, an action which was to his knowledge unobserved; attending four or five question-and-answer meetings with perhaps as many as 10 other employees, at the union representatives' motel, and three or four organizational meetings with 15 or 20 other employees at a local union hall. He also, together with a fellow employee (Woodson), furnished the Union with the names of other nightshift employees, and he placed union literature on a table in the employees' rest area, which also to his knowledge was unobserved. He concedes he did no handbilling until after his discharge. The testimony of union representatives Stuckenschneider and Todd, while corroborating Coons' testimony in this aspect, shows that various other employees-who have not been discharged or in any way disciplined-were at least as active, if not more active or far more active, in union affairs than Coons. General Foreman Baughman swore he was unaware of any union activity on the part of Coons before the latter filed his unfair labor practice charge here. Respondent produced proof of the discharge of a number of employees other than Coons, under comparable circumstances, for excessive or unexcused absenteeism. While I have credited General Foreman Baughman's testimony that he explicitly notified Coons on the occasion of his earlier (August 11) unexcused absence that it was necessary to notify the plant if he would not be in for work, it should be emphasized that even if I made no such finding and even if it were to be assumed that Coons was on the later occasion (August 26-27) unaware of such a require- ment, Respondent's discharge of Coons for failing to call in that he would not be in to work on August 26 and 27 would still not be violative of the Act 45 Cf. Trojan Steel Corporation, 180 NLRB No. 107, Forster Manufacturing Co., 175 NLRB No. 29. It does not appear that the union activity of Coons (a temporary summer employee whose total length of employment with Respondent was only about a month, who was not a member of the bargaining unit [it is not here intimated that this circumstance is a defense to violation of the Act], and whose testimonial unsureness and evasiveness, if not worse, did not leave a favorable final impression upon me) was particularly noteworthy. Certainly it did not compare with that of Rouse, nor apparantly even with that of other employees who were neither discharged nor disciplined or otherwise retaliated against by reason thereof. Union membership and activity do not preempt an employee from discharge 45 This is true notwithstanding Baughman's apparent concession during cross-examination that ignorant violation of a workrule by an employee would not be "grounds for discharge." Certainly it would be grounds if, as Baughman's credited testimony establishes in the case of Coons, the employee was expressly informed of the rule at least on the occasion (in Coons' case, August 11 ) of a prior unexcused absence . Although an examination of Respondent's penalties for infraction of its "Plant Rules" contained in its employees' handbook indicates that the penalty for a for cause; and, subject to credibility requirements, the employer may determine what constitutes cause, so long as it does not trespass the Act's preserve. As the Board recently stated in J.P. Stevens & Co., Inc., 181 NLRB No. 97: The Act's grant of rights to employees to engage in organizing activities, to belong to a union, and to engage in collective bargaining was not intended to deprive management of its right to manage its business and to maintain production and discipline. Measured by these standards, Respondent had sufficient cause for discharging Coons under the circumstances shown. And the discharge not having been in violation of the Act, Respondent was and is under no obligation to reinstate or rehire him; nor has it refused to do so, since he has not applied for reemployment. I find that it has not been established by a fair preponderance of the substantial credible evidence, as required, that Respondent discharged, or has failed to reinstate or rehire, Terry Coons because of his union or other protected concerted activity as alleged in the complaint. D. 8(a)(5) Violations The complaint (paras. 7-12 and 14) alleges that since July 3 Respondent has continued to refuse to bargain collective- ly with the Union as the duly designated representative of a majority of Respondent's employees in an appropriate collective-bargaining unit, while at the same time engaging in the program of 8(a)(1) violations which has been discussed, in order to undermine and destroy the Union's majority representative status. Union organizational activity involving the Charging Party at Respondent's Hannibal plant commenced in earnest in late April. By the beginning of July the Union had obtained signed collective-bargaining authorizations from a majority of the Hannibal plant production and maintenance employees. On July 3, after Hannibal Plant Manager Gross refused to talk to union representatives who had called on him, the Union, by certified mail, informed Respondent that it represented and wished to meet and bargain collectively with Respondent on behalf of Respon- dent's Hannibal plant production and maintenance employees, as evidenced by authorizations received by the Union from a majority of those employees and which it signified it was willing to exhibit for verification. This formal request was received on the same day (July 3) by Respondent, which by its letter of July 7 refused to recognize or meet or bargain with the Union, on the ground that it "doubts that your organization represents an uncoerced majority of its [i.e., Dixisteel's] employees in any appropriate unit." No basis for the alleged doubt was set forth. The Union's offer to submit its authorization cards for verification was at the same time declined because "the second violation for tardiness or absenteeism is only a 3-day suspension (and discharge for the 4th violation), as credibly explained by Gross, and as is understandable, a stricter standard is applied by Respondent in regard to temporary summer employees, such as Coons was. Furthermore, the "rules" in the employees' handbook (which Coons denied receiving or seeing) are not contractual, and, even if they were, Respondent's nonadherence thereto would not of itself constitute an unfair labor practice in violation of the Act but might at best be some evidence of one. DIXISTEEL BUILDINGS, INC. reasons which gave rise to this company's doubt of your organization's uncoerced majority status are such that they can only be resolved through a board conducted secret ballot election." Respondent's position has remained unchanged since then, and no bargaining has taken place, nor has the Union in any way been recognized. At the hearing, Respondent withdrew its denial of the appropriateness of the bargaining unit in question. I find that the bargaining unit claimed, which is a conventional unit of production and maintenance employees, is appro- priate for collective-bargaining purposes, as alleged in the complaint. An inspection of the Union's authorization cards in question discloses that their wording is totally clear and free from ambiguity. These cards, in bold letters captioned "AUTHORIZATION FOR REPRESENTATION," in plain terms designate and appoint the Union as the collective-bargain- ing representative of the signatory employees. Credited testimony of numerous employee signatories of these authorization cards, as well as other witnesses, clearly establishes, and I accordingly find, that the following employees, comprising a clear majority of Respondent's employees in the foregoing collective-bargaining unit, voluntarily and without coercion or misrepresentation, unconditionally executed and delivered or caused to be delivered to the Union such authorization cards, prior to July 3 (the date of said demand), with a clear understanding of the nature, contents, and effect thereof: 46 Name 1969-Date Almandinger, D.P. 6-24 Almandinger, L. B. 6-19 Amburn, D. 6-19 Askew, R. 6-21 Bailey, J. 6-20 Brown, D. E. 6-24 Brownell, W. J. 5-5 Campbell, R. W. 7-2 Davis, G. L. 6-9 Donaldson, P. R. 7-2 Dudley, F. L. 6-30 Dusenberry, W. 6-18 Elkins, J. A. 6-24 Ebers, D. J. 6-19 Ely, J. M. 6-4 Fogle, D W. 6-25 Fountain, A. F. 5-17 Freeman, D. W. 7-1 Graham, M. 5-20 Green, W. C. 5-16 Hastings, G. W. 6-18 Hooper, E. H. 5-20 Kelley, J. E. 5-17 Kelley, W. L. 6-5 48 See discussion, infra 47 C. E Churchill, who executed an authorization card on June 12, is not included in the names of employees in the stipulated unit list for July 3 (G C Exh 23) The following additional valid union authorization cards were unconditionally executed and delivered to the Union, subsequent to July 3 and prior to September 9 (i.e, the date of the Board -conducted union election) by additional employees of said collective -bargaining unit, likewise voluntarily and without coercion or misrepresentation , with a clear Lear, C. H. 6-17 Luken R. 6-18 Malone, J. 5-30 Michaels, A. L. 6-19 Mickels, F. L. 6-25 Noel, R. 6-18 Porter, J. A. 6-5 Rhodes, R. D. 5-20 Rice, D. 6-19 Rouse, H. T. 5-5 Sanders, V. 6-17 Sellars, A. 6-13 Sheffield, T. E. 6-13 Sidwell, L. D. 7-2 Taylor, F. 6-27 Thomas, G. W. 6-3 Wade, R. L. 6-17 Walker, N. W. 7-2 Wienhoff, R. W. 6-19 Wilson, K. E. 6-20 Woodson, T. 6-30 421 Total valid Union authorization cards prior to July 3 .. . 45.47 It is stipulated that on July 3, the date of the foregoing union request for recognition and collective bargaining, the aforedescribed collective-bargaining unit consisted of 83 employees, including all of the 45 employees enumerated above whose authorizations it held on that date. Thus, on that date (July 3), the Union was the duly designated collective-bargaining representative of 45 of the 83, or 54.2% of the unit employees, a clear majority. Although the vast majority of the foregoing union authorization cards present no issues deserving comment, a few do and these will be individually discussed. 1. Askew The union authorization card concededly executed and delivered by Richard Askew has been thrown into sharp question. Askew now claims that in connection with that card his fellow employee "Rouse told me if they had 51 per cent of the cards or more that they could hold an election to see if the Union could come in. I am sure he said that about an election." According to Askew, Union Representative Stuckenschneider had previously visited him no less than 15-20 times and had also "said if they had enough of them they could hold an election for a union." However, Askew conceded that he "read the card before [I] signed it," that he did "understand what it said," and that he even made a correction in the information (relating to his job classifica- tion) on the card before signing it. Of course, the card itself understanding of their nature, contents, and effect Name 1969-Date Davis, D. (Henry) 7-31 Davis, S E. 7-31 Kinder, F E 7-23 Leake, B J 7-31 Moyers, B. P 7-23 Murphy, J 7-23 Total additional valid Union authorization cards, July 3-September 9-6. 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD says nothing whatsoever about an election , and its purpose as indicated by its wording is entirely clear. Nevertheless-for this purpose ignoring the semantic intricacies inhering in the word "could" as used by Askew-this would still not rule out the possibility that the use to which the card would be placed was misrepresented to him or that the card was conditionally delivered by him for such other use (i.e. election) only or that his signature to the card was procured through fraud . Cf. N.L.R.B. v. Koehler, 328 F.2d 770 (C.A. 7); Peterson Bros., Inc., 144 NLRB 679; Morris & Associates, Inc., 138 NLRB 1160, 1164-65 ; Englewood Lumber Company, 130 NLRB 394. It is these and similar considerations which tender the issues, largely of credibility, around which the validity of Askew's authorization revolves. Questioned more closely concerning his conversation with Stuckenschneider involving the card, when asked whether Stuckenschneider told Askew "anything at all about going to [Plant Manager] Mr. Gross's after he got a majority of the cards signed," Askew did not deny this but responded merely, "I couldn't say," When asked to narrate what Rouse told him, Askew replied that it was "that if they had 51 per cent they could have an election to see if the Union could come in or not." Rouse, who received the signed authorization card from Askew, testified that he explained to Askew that "it was an authorization card for the union to represent the employees for the negotiations of a contract, the cards would go to the company for the union to be recognized. If they recognized the union then they would negotiate for a contract.. . . He [Askew] asked what if the company didn't recognize them. I told him the cards, then, would go to the Labor Board for a date set for an election.... I told him that we would have to have 51 per cent or better before the union could go to the company." Rouse flatly denies telling Askew that an election could be held if the Union obtained signed cards from at least 51 per cent of the employees. According to Union Representative Stuckenschneider, he visited Askew at most three times in connection with union organizational attempts . On the first occasion, Stucken- schneider "told Mr. Askew that we were attempting to get all of the Dixisteel employees signed up and that as soon as we did we would seek to get a contract from Dixisteel, ask recognition and seek to get a contract ." Stuckenschneider Outlined our [i.e., the Union's] entire program to Dick [Askew ]. I told him about the Sheet Metal Workers Union, what we proposed to do . I asked him to sign a card.... I handed him a card, explained the purpose of the card to him, explained what was contained on the card.... I read the card to him, I turned the light on in the car, because my son was with me and he was trying to keep warm, and I told him to lock the door while I was gone, and I had opened the door and I read the card to him, I explained to him what it authorized us to do, that we could go to the company, demand recognition from the company, and begin negotiating an agreement as soon as the company agreed to do so. I also explained to him about the drafting of the contract proposal on the fact they would vote on it and so forth, before it was ever presented to the company. Stuckenschneider denies that the question of union election was in any way discussed or raised. On a subsequent occasion, Mr. Askew and I had quite a lengthy conversation on that particular night, the weather was warmer and his entire family was outside, and I recall some of the children playing in the mud puddle , and Mr. Askew had a lot of questions about the union, about electing a committee, about what the dues would be, about elections in the union, about how the union organiza- tional setup was-well, what the organizational setup was, whether they would have their own local union or belong to another local union , and so forth. And he said that he had gotten a lot of these questions from work, and I knew that Mr. Askew had been talking to the company about some of these things, or at least I had gotten word that Mr . Askew had been in the company office and talked to some of the company people about these things. Again we talked about authorization cards. I asked him several times to sign the card . I'm sure I explained the purpose of the authorization card to Dick again, because I had gone over it with him on at least two or three occasions , the purpose of the signing the card was to authorize us to represent him. On this occasion, Askew asked Stuckenschneider "what happens if the company won't deal with you, if the company won't agree to sit down and start negotiating, and I told him on this occasion . . . that the company had to, by law they had to deal with us once we got a majority signed up. However, if they didn't, we would have to file charges against them, or we had an alternative of going to the Board and seek an election." Askew promised that he would "sign a card for Harry Rouse." A few days later, Stuckenschneid- er received from Rouse an authorization card signed by Askew. At no time has Askew sought the return of his card from the Union nor indicated to the Union that he did not wish it to represent him or to limit the purpose for which the card should be used. After careful evaluation of the record as a whole, and close observation of testimonial demeanor, I am unable to credit Askew's version of what he claims to have been told the authorization card was for . As has been stated, the wording on the card is plain, clear, and explicit; and Askew had ample opportunity not only to read but to study and ruminate on it. Indeed, he himself concededly made a correction on it before signing it. And on the basis of observed testimonial demeanor I have no hesitation whatsoever in preferring the testimony of Stuckenschneider and Rouse to that of Askew. Both Stuckenschneider and Rouse impressed me as credible witnesses ; the same can be no means be said for Askew, as I have already had occasion to indicate in a previous connection. Stuckenschneider furnished a comprehensive, clear, and convincing account of his dealings with Askew , as distinguished from Askew's incomplete version, haltingly delivered with evasiveness, alleged memory lapses, and overt hostility. In the normally difficult task of credibility assessment, I was not uninflu- enced by what appeared to me to be Askew's duplicitous attempt-alluded to in a previous connection-to escape from the pretrial affidavit which he gave to the Board agent at a time when he had no discernible motive to tell other DIXISTEEL BUILDINGS, INC. than the truth. Having closely observed Askew. I received the impression that he was attempting to engage in deception at the hearing in attempting to thread his way out of that affidavit. Under these circumstances, and consider- ing the countervailing evidence, I am unable to credit Askew's testimony to the effect that the authorization card which he signed was to be limited to or utilized only for or in connection with a Union election. I accordingly find that the authorization card which Askew executed and delivered was a valid designation of the Union as his collective- bargaining representative and that it was unconditionally so intended and delivered by him. 2. Ebers Maintenanceman Daniel Joseph Ebers testified that at the time he received and signed the union authorization card he was told it was "just . . . for recognition ... just about so the union could be recognized by the company," and that nothing was said about an election at any time before he signed the card. However, Respondent's counsel succeeded in eliciting from Ebers that "when [I] signed the card . . . Dust started working then, and I didn't know how the company was. So, I signed one just in case I didn't like the company, then, I could vote for the union to see if they could do something for me.. . . Just kind of a safety valve, if I didn't like the company, I could go with the union, if I didn't like the union, I could go with the company." Ebers told this to an associate of Respondent's counsel when in the course of his trial preparation Ebers was interviewed by him in Respondent's Hannibal plant office in the presence of Plant Manager Gross. As has been indicated a number of times, the wording of the authorization card here is plain and clear. There is no evidence that in signing it Ebers was in any way misled; indeed, the evidence establishes the contrary. Although it has repeatedly been held that an employee's "subjective intent"-particularly as attempted to be reconstructed or allegedly reconstructed under the watchful eye of his employer (especially an employer who has meanwhile engaged in unfair labor practices to oust the union) at the trial-is irrelevant or of questionable weight48, there is nothing to indicate that Ebers did not intend its conse- quences at the time of execution as well as thereafter; namely, appointment and authorization of the Union as his collective-bargaining representative. Such authorizations are, of course, always subject to revocation or withdrawal, which was not the case here. I find that the union authorization card of Daniel Joseph Ebers was unconditionally executed and delivered by him as a valid designation of the Union as his collective- bargaining representative. 3. Rhodes Nightshift plateshear operator Rudy Dale Rhodes, describing the circumstances attending the execution of his union authorization card, testified that he was told by 48 See, e g, N L R B v. Gissel Packing Company, 395 U S 575, 608, N L R B v American Art Industries, Inc., 415 F 2d 1223,1228-1229(C.A. 5), International Union, UAW v. NLRB (Preston Products Corp), 392 F 2d 801, 807-808 (C A.D C ), cert denied 392 U S 906, NLRB v 423 Rouse "that they were passing cards around to try to get a union to negotiate with the company so that if we got enough cards and everything to negotiate that they would vote on it." However, a long interval of time having elapsed, Rhodes also testified that "I [Rhodes] don't remember exactly what he [Rouse] said"; and he then conceded that Rouse did not use the word "vote," although he still later indicated that Rouse did speak of a "vote on a contract " (emphasis supplied). Rhodes continued to emphasize, "I don't really recall exactly just what his words were, it has been so long ago." With his recollection refreshed by a more contemporaneous pretrial affidavit given to a Board agent, Rhodes at length testified that "Harry [Rouse ] gave me the card and said they were trying to get a union and he asked me if I would want the union to represent me. I told him that I wanted the union more or less to represent me. I read the card, signed the card, and he said that if enough cards were gathered that the union would take them to Mr. Gross and they'd go ahead." He added that he was unable to recall "what was said about an election," and after what appeared to be an overtaxingly supreme effort on his part he insisted that "I just don't know how to recall it any more than I have." However, he agreed that he both read and understood the authorization card which he filled in and signed. Employee Harry Rouse testified firmly, unequivocally and convincingly, that he did not solicit Rhodes' card at all, but that employee Lear (who did not testify on this) apparently did. In view of Rouse's testimony concerning his own extensive card solicitations, I am unable to perceive any reason why Rouse-who impressed me as a truthful witness-should deny that he also solicited Rhodes' card, unless he in fact did not do so. I credit Rouse's testimony in this aspect. Rhodes demonstrated a concededly highly deficient recollection of the circumstances surrounding his execution of his union authorization card, exhibited a high degree of equivocation concerning the nature of any discussion about an "election" or "vote," and conceded that in any event it was "vote on a contract" which was mentioned. Notwith- standing Rhodes' pitifully inadequate or perhaps pretended or apprehensive recollectional endeavors, he conceded without equivocation that he read and understood the authorization card which he filled in and signed. I do not credit so much of his testimony as may conceivably be construed to indicate that he was told that the card was for union election purposes or for union election purposes only. See cases cited, supra, footnote 48. I find that the union authorization card of Rudy Dale Rhodes was unconditionally executed and delivered by him as a valid designation of the Union to be his collective- bargaining representative. 4. The "Todd Cards" contention Although not known to Respondent at the time of its rejection of the Union's recognitional request, during the trial certain testimony elicited from union representative Southbridge Sheet Metal Works, 380 F 2d 851, 855-856 (C A 1); Marie Phillips, Inc, 178 NLRB No. 53; McEwen Manufacturing Co, 172 NLRB No 99, Levi Strauss & Co, 172 NLRB No 57; G & A Truck Line, Inc, 168 NLRB No. 106, enfd 407 F.2d 120 (C A 6) 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD David E. Todd on his direct examination, and reiterated or amplified on voir dire or cross-examination, forms the basis for the additional contention by Respondent at this time that the Union's authorization cards are invalid for the purpose of establishing the Union's asserted representative status. Even though this did not form a basis for Respondent's rejection of the Union's bargaining request, it is nevertheless necessary to examine this contention, since there cannot be said to arise any obligation to bargain with other than a duly authorized representative possessing valid credentials. The "Todd cards" contention now raised goes to the essence of the validity of the Union's bargaining credentials. Todd's testimony indicates that in his solicitation of the union authorization cards of employees (perhaps as many as about 20), he clearly and correctly explained to the employees that the cards were for recognitional purposes. However, according to his testimony, he also indicated to them that "we intended to demand recognition from the company . . . as soon as we got a strong majority of the people signed up in the plant, which as far as we were concerned would have to be at least 60 per cent" and that "we intended to attempt to negotiate a contract with them and if we were not successful in doing this that we would probably file for an election.. . . if we were unsuccessful in getting recognition, getting our demand met, that we would probably file a petition at the Board, at the N.L.R.B., for an election." Although Todd testified that according to his calculations the Union has achieved around 61% of strength, on July 3, as has been demonstrated above, it had attained only somewhat over 54% of strength. Under these circumstances, Respondent now raises the additional contention that the cards do not establish representational status on the part of the Union. After careful consideration of Respondent's contention in this regard, I have concluded that I cannot agree with it, for the following reasons: (1) The Act (Secs. 9(a) and 8(a)(5)) requires an employer to bargain collectively with the designated representative of a majority of unit employees. Since the Union here clearly fulfils that requirement, under the circumstances shown Respondent would appear to be in default of the requirement. There is insufficient basis for inferring that the employees, whose protection is the purpose of the Act, acted or intended to waive the Act's protections or provisions, even if they could in view of the paramount public interest. (2) In view of Todd's clear explanation of the purpose of the card as representational, his added remarks bear the character of surplusage statements of intended union strategy, so to speak, subject to modification as strategy invariably is. (3) A reasonable contextual interpretation of Todd's remark here singled out, is that he utilized "60%" as a mere convenient round-figure example of a "strong" or "definite" majority. However, it cannot be said as a matter of law that the 54.2% attained by July 3 is also not "strong" and "definite." (4) Todd's "60%" observation was not promissory or conditional in nature, and it cannot be regarded as creating an estoppel on the Union's part to act for the protection of the employees in accordance with the rights expressly secured to them by the Act. Todd did not undertake not to use the cards unless the Union obtained 60%. (5) There is neither evidence nor evidentiary suggestion that the employee signatories in question would not have executed the cards but for Todd's "60%" observation. G & A Truck Line, Inc. v. N.L.R.B., 407 F.2d 120, 122-23 (C.A. 6); McEwen Manufacturing Co., 172 NLRB No. 99; Levi Strauss & Co., 172 NLRB No. 57. (6) The evidence overwhelmingly establishes that the employ- ees understood the terms of the authorization cards which they signed. Those terms are clear and unambiguous. (7) There is neither evidence nor indication that any employee limited the use of his card to a 60% majority contingency. There is no suggestion in any testimony of any employee to that effect. (8) Since actual, but at any rate not "decisive" ( Marie Phillips, Inc., 178 NLRB No. 53, misstatements to employees as to already having a majority of cards signed have been regarded as not vitiating the cards ( G & A Truck Line, Inc., 168 NLRB No. 106), Todd's "60%" observation here should a fortiori be so treated. (9) It is to be noted, finally, that not a single employee has raised this contention, which may at best be viewed as a matter between the employees and the Union. On the contrary, it is the Employer who now casts himself in the role of self- appointed vindicator or protector of employees' supposed best interests (when they coincide with his own). "In effect, he [the employer] seeks to vindicate the rights of his employees to select their bargaining representative. If the employees are dissatisfied with their chosen union, they may submit their own grievance to the Board. . . . The underlying purpose of this statute is industrial peace. To allow employers to rely on employees' rights in refusing to bargain with the formally designated union is not conducive to that end, it is inimical to it." Brooks v. N.L.R.B., 348 U.S. 96, 103. For the foregoing reasons, I reject Respondent's conten- tion that Todd's "60%" observations negate the Union's claim of representational status here and freed Respondent from its statutory obligation to bargain with the Union. It will be recalled that in refusing to recognize or bargain with the Union, or even to look at its signed authorization cards, Respondent had merely given as its reason that it "doubts that your organization represents an uncoerced majority of its employees in any appropriate unit." As has been indicated, at the hearing Respondent withdrew its denial of the appropriateness of the bargaining unit, and no evidence whatsoever has been presented of coercion of any employee. It is clear from the Supreme Court's recent unanimous pronouncement in N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, that an employer's "good faith doubt" as to a Union's representative status, being "largely irrelevant" (id at 594), is no longer an answer to a refusal to bargain; at any rate where, as here, "there is . . . interference with the election processes" through "independent unfair labor practices which tend to preclude the holding of a fair election" (id at 595).49 As has been shown, Respondent here engaged in a massive program of unfair labor practices to prevent its 99 The full Supreme Court decision passage is: `Because the employers' unfair labor practices which tend to preclude the holding of a fair election, refusal to bargain in each of these cases was accompanied by independent we need not decide whether a bargaining order is ever appropriate in cases DIXISTEEL BUILDINGS, INC. employees from bargaining collectively through the bargaining representative designated in the unambiguous representation cards which they had executed of their own free will and choice.50 Respondent's actions here in totality bespeak rejection of the collective bargaining principle which is imbedded as a lodestone of national industrial relations policy. The quantum, nature, and timing of Respondent's manifold violations of Section 8(a)(1) alone would justify such conclusion and require appropriate remedy. I find that on and since July 3, 1969, Respondent has refused, and continues to refuse, to recognize, meet, or bargain with the Union, notwithstanding the Union's request and status on said date as the duly designated collective-bargaining representative of a majority of Respondent's employees in an appropriate collective- bargaining unit ; that Respondent engaged in the unfair labor practices found in " III B" and "III C," supra, in order to undermine, dissipate, and destroy said majority repre- sentational status of the Union; that by refusing to bargain with the Union and by engaging in said unfair labor practices with the aforesaid purposes, Respondent in rejection of the collective-bargaining principle sought to evade and avoid its collective-bargaining obligation under the Act; and that for these reasons and upon the entire record Respondent has violated Section 8(a)(5) and (1) of the Act. See N.L.R.B. v. Gissel Packing Co., 395 U.S. 575. IV. REPORT ON OBJECTIONS TO ELECTION As indicated at the outset, there has been consolidated with the unfair labor practices case (No. 14-CA-5227) a related representation case (14-RC-6230), for the purpose of hearing certain related issues in the representation case arising out of the petitioning Union's objection filed therein to the election which the Union, despite its 54% majority on July 3, lost by a vote of 41 to 29 on September 9.51 In short, where there is no interference with the election processes" (Gissel, supra at 595, emphasis supplied) 50 If, as Respondent claims, it "doubted" the Union's representative status on July 3 for a variety of reasons, any such doubts, if bona fide, could readily have been resolved by permitting the Board's secret election processes to proceed without interference Without having assigned any reason, prior to the hearing herein, for its alleged "doubt" of the Union's representative status, Respondent now advances a variety of "reasons " First, it states that two other unions had failed in previous organizational attempts , neither of these unions had made any recognitional request and the earlier cards were not only superseded by those here, but they were destroyed. Respondent at no time on or after July 3 made any attempt to ascertain the facts concerning its employees' representational desires in a lawful manner, cf. Struksnes Construction Co, 165 NLRB No 102, cited approvingly in Gissel, supra at 609 Moreover, a party's ipse dixit assertion that he has a "doubt" no more establishes that in fact he has the doubt than his mere assertion of any other alleged fact establishes that to be a fact See, e.g, Gissel, supra at 597 ("bona fide dispute"), G & A Truck Line, Inc v NLRB, 407 F.2d 120, 123 (C A 6), International Union, UAW [Preston Products Corp] v NLRB 392 F 2d 801, 808 (C A D C.), cert denied 392 U S 906, N L R B v Southbridge Sheet Metal Works, 380 F 2d 851, 856 (C.A. 1) Furthermore, Respondent's numerous unfair labor practices in the critical intervening period between the Union's recognitional demand (July 3) and the Board election (September 9), superadded to those before and its long-standing determination to avoid collective bargaining, tend to throw into sharp question the alleged fact of Respondent's professed "doubt" "In cases such as this, where the employer's unfair labor practices are clearly established, both before and after the demand for bargaining, the good faith of his doubts of the union majority may properly be regarded with 425 the Union in such of its objections as have been referred here for consideration, asserts that it lost the election because of the Employer's reelection misconduct consisting of those actions which form the subject of the complaint in the unfair labor practices case here. Inasmuch as these have already been extensively discussed and findings made in relation thereto, no reiteration is here called for. It is accordingly found, for reasons fully explicated supra, that Union Objections 1, 2, and 9 (interrogation), 3, 4, and 5 (economic threats and assertions of futility of unionization and collective bargaining), and 12 (assurances of economic betterments in the event of rejection of the Union),52 dated September 16, 1969, to the conduct of the election of September 9, 1969, having been established to be meritori- ous, should be sustained, and that that election should accordingly be voided and set aside and its results annulled, and I so recommend.53 Upon the foregoing findings and the entire record, I state the following: V. CONCLUSIONS OF LAW 1. At all material times, Dixisteel Buildings, Inc., Respondent herein, has been and is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. At all material times, Local 93, Sheet Metal Workers International Association, AFL-CIO, has been and is a labor organization within the meaning of Section 2(5) of the Act. 3. By the conduct set forth in section "III B," "III C 1," and "III D," supra, which has been found to constitute unfair labor practices, Respondent has interfered with, restrained, and coerced its employees, and is interfering with, restraining, and coercing its employees, in the exercise of rights guaranteed to them by Section 7 of the Act, in violation of Section 8(a)(1) of the Act. some suspicion " N L R B v. Cumberland Shoe Corp, 351 F 2d 917, 921 (C.A 6) Respondent's unfair labor practices here are also consistent with an absence of real doubt on its part and with a desire to utilize the intervening period to dispel the union majority or at least to destroy the conditions required by public interest for a fair and uncoerced election. Under the circumstances here presented, I cannot accept Respondent's insistence that it was justified in flatly rejecting the Union 's requests on July 3 to meet with it and examine its written credentials , as a preliminary to collective bargaining, simply because on two prior occasions two other unions had obtained only a few authorization cards, and it desired a Board election As emphasized by the Supreme Court, in Gissel, supra at 595-6600, the Act does not require a Board-conducted election and certification as a precondition to collective bargaining. Si The Union petitioned for the election after Respondent's Plant Manager Gross refused to see its representatives when they called on him on July 3 52 No comment is made concerning the Regional Director's recommendations concerning other Objections (i e., 6, 7, 8, 10, 11, and 13) to the conduct of the election which have not been referred to the Trial Examiner 13 The election-related conduct violative of Section 8(a)(1), as herein, may be regarded as necessarily interfering with free and untrammeled Board-conducted elections, see Industrial Steel Products Company, Inc, 143 NLRB 336, Playskool Manufacturing Co, 140 NLRB 1417, 1419; Dal-Tex Optical Company, Inc., 137 NLRB 1782, 1786-87. It is noted that at the trial Respondent withdrew the affirmative defense pleaded in its answer as amended at the trial. The affirmative defense had alleged that the conduct of the Union as well as of the bargaining unit employees, in the preelection period interfered with a fair election, making certification or a bargaining order inappropriate without another election. 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. By the conduct set forth in section "III C I," supra, which has been found to constitute unfair labor practices, Respondent has discriminated in regard to the hire, tenure, and terms and conditions of employment of its employees, thereby discouraging membership in a labor organization, in violation of Section 8(a)(3) of the Act. 5. By the conduct set forth in Section "III D," supra, which has been found to constitute unfair labor practices, Respondnet has refused and is refusing to bargain collectively with the duly designated representative of its employees, in violation of Section 8(a)(5) of the Act. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 7. It has not been established by a fair preponderance of the substantial credible evidence in this proceeding that Respondent discharged 'Terry Coons from its employ, or failed to reinstate or reemploy him, in violation of Section 8(a)(3) or (1) of the Act as alleged in the complaint herein. VI. REMEDY With regard to remedying the unfair labor practices comprising the violations of Section 8(a)(1) and (3) which have been found, I shall recommend the usual cease-and- desist order and affirmative relief customarily ordered in cases of this nature, involving interference, restraint, and coercion and discriminatory treatment of employees. The recommended Order in this aspect will include a provision requiring Respondent to reimburse its employee Harry Rouse for pay of which he was deprived by the described unlawful 3-day suspension, together with interest, less applicable net earnings, if any, all to be computed in the manner prescribed by the Board in F. W. Woolworth Co., 90 NLRB 289, and Isis Plumbing & Heating Co., Inc., 138 NLRB 716; and Respondent shall be required to make available necessary records for computation of backpay. In view of the fact that the unfair labor practices here are so numerous and are of a character striking at the main roots of the Act and its intended guarantees, I shall include a provision requiring Respondent to cease and desist from any infringement on the rights secured by Section 7 of the Act. The usual notice posting will also be recommended. Concerning the Union's objections to the conduct of the election held on September 9, 1969, in Case 14-RC-6230, in order to implement my recommendations that those objections be sustained to the extent indicated, I shall recommend that that election be set aside and its results annulled and, for reasons to be shown, that the petition 54 Thus, in A. 3. Krajewski Manufacturing Co., Inc., 180 NLRB No. 173, involving the issue of whether a single violation of the Act, consisting of the discharge of the employee Union leader during the preelection period-comparable to the case of Rouse here-alone, without more, justifies a bargaining order , the Board held that it did, stating: Respondent contends, in its statement of position , that this discharge was the result of a single isolated action and is insufficient to establish a violation of Section 8(aX5) or to sustain a bargaining order . We find no merit in this contention . It is a well-established fact that a discriminatory discharge of an employee because of his union affiliation goes to the very heart of the Act. Furthermore, the discharge of the union leader, as here, serves as a warning to the employees that the employer has the power to take action which affects the employees' livelihoods and that it is willing to implement such power against union adherents . The implementation of such power against the union ringleader is just as likely to accomplish the therein be dismissed and all proceedings held thereunder be vacated. It remains to consider the appropriate remedy for Respondent's violations of its bargaining obligations under Section 8(a)(5) of the Act, in the conjoined frame of reference or matrix of its massive violations-no less than 36 in number-of Section 8(axl) of the Act and its further significant violation-discriminatory discipline of its employees' organizational leader and "spearhead" on the very day after he attended a Board preelection hearing-of Section 8(a)(3) of the Act. It has been found that the Union represented an uncoerced majority of Respondent's employees in an appropriate bargaining unit at the time of its request, on July 3, for recognition and bargaining; that Respondent out-of-hand refused to see or meet with, much less recognize or bargain with, the Union then or at any time since then; that Respondent did not in good faith refuse to recognize or bargain with the Union, but rather because it was motivated by its rejection of the collective-bargaining principle and by its desire to gain time to undermine the Union and dissipate its majority status; and that Respon- dent thereafter engaged in extensive and flagrant violations of Sections 8(axl) and (3) of the Act in order to carry out its purpose of ousting the Union, which it thereby succeeded in doing. It is not the purpose of a Board election to stamp the Board's formal imprimatur of approval on an election result brought about in this way. The total restraining and coercive effect on the employees of Respondent's "independent" violations of Section 8(a)(l)-27 of 36, involving 13 of 18 separate incidents, occurring in the critical 2-month period between the Union's recognitional request (July 3) and the Board election (September 9)-and the powerfully restraining and coercive impact of Respon- dent's unlawful discriminatory suspension action against union employee "spearhead" Rouse on the very day after his return from the Board representation case hearing in St. Louis (August 7), should not be minimized54 It would be difficult to imagine clearer warning signals than these, considering their overall scope and continuing nature. As has been shown, Respondent had no absolute right to insist on an election under the circumstances shown, as a precondition to meeting with the Union to establish its credentials for bargaining purposes, and certainly no shadow of a right to insist on a Board election in order to utilize the interregnum for ousting the Union through unlawful means. See N. L. R. B. v. Gissel Packing Company, 395 U.S. 575. Having violated the law in both destruction of employee support for unionization as would a greater number of unfair labor practices which individually have a lessgr impact. In our opinion, a bargaining order is warranted on the facts of this case. After rejecting the Union's bargaining demand, the Respondent successfully used the time available before the election to undermine the Union's majority by discriminatorily discharging Andreoli, the leader of the Union 's organizational drive among the employees. It is unlikely that the lingering coercive effect of this discriminatory discharge could be neutralized by conventional remedies so as to ensure a fair rerun election . We therefore find that the employee sentiment expressed through the cards is a more reliable measure of employee desires and that statutory policies are better effectuated by issuing a bargaining order than directing a rerun election. DIXISTEEL BUILDINGS, INC. regards, Respondent should not now be permitted to retain the fruits of its double wrong; nor should the declared national policy favoring collective bargaining be derailed to favor a party who has established the roadblocks. Employers-even those, unlike Respondent, entertaining good-faith doubt as to a bargaining representative's credentials-who insist on a Board-conducted election to resolve "doubts," should-again, unlike Respondent-scrupulously refrain from interference with, restraint, or coercion of their voting employees' rights under the Act, in the necessary waiting period before the Board election can be held. If, like Respondent, they do not, they can in good conscience neither insist on the Board's approval of the contaminated election results which they have brought about, nor as of right demand another election (or elections) at some indeterminate future time when the consequences of their unlawful actions have hopefully been forgotten or dimmed (which in some cases they never are). Although the Board normally favors elections as a preferred instrumentality for determining employees' representation desires, where an employer has by his own actions rendered that machinery unworkable, the less ideal measure of "card strength" may be resorted to as the only feasible alternative, considering all factors including time. In N. L. R. B. v. Gissel Packing Company, 395 U.S. 575, the Supreme Court indicated that the Board may on the basis of an 8(a)(5) or (1) violation issue a bargaining order based on union authorization cards where "the possibility of erasing the effects of [the] past practices and ensuring a fair election (or a fair rerun) by the use of traditional remedies . . . is slight and that employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order (395 U.S. at 614-15). In this case, the quantitative massiveness and the qualitative nature of the unfair labor practices committed by Respondent, reflected against the spectrum of the small community, observed factory worker level, and time factors involved, persuade me that Respondent's violations would tend to leave lasting scars with lingering coercive effects on the employees and that they are in the aggregate of so substantial a nature as to preclude the holding of a fair and free election in the reasonably foreseeable future. I find that under the circumstances shown there is "insufficient indication that a . . . [rerun] election would definitely be a more reliable test of the employees' desires than the card count taken before the unfair labor practices occurred." N.L.R.B. v. Gissel Packing Company, 395 U.S. 575, 616. For these reasons I have concluded that the desires of Respondent's employees, as expressed by the valid authorization cards signed by a majority of the employees in the unit, can be better protected, and statutory policies effectuated, by the issuance of a bargaining order, and I shall accordingly so recommend. N.L.R.B. v. Gissel Packing Company, supra. See also, e.g.: N.L.R.B. v. Wylie Manufac- turing Company, 417 F.2d 192 (C.A. 10), cert. denied 397 U.S. 913; International Union, UAW v. N.L.R.B. (Preston Products Corp.), 392 F.2d 801 (C.A.D.C.), cert. denied 392 55 That any possible subsequent loss of union majority, under the demonstrated circumstances, would not render inappropriate a bargaining order, see N L R B v Gissel Packing Company, 395 U.S 575, 610, N L R.B 427 U.S. 906; Hecks, Inc., 181 NLRB No. 129; Transport, Inc. of South Dakota et al., 181 NLRB No. 69; Mink-Dayton, Inc., 181 NLRB No. 40; A. J. Krajewski Manufacturing Co., Inc., 180 NLRB No. 173; Louisburg Sportswear Co., 180 NLRB No. 114 and 173 NLRB No. 101; Noll Motors, Inc., 180 NLRB No. 60; Chris Christou, d/b/a Solvay Baking Co., 180 NLRB No. 25; General Steel Products, Inc., 180 NLRB No. 8; American Cable Systems, Inc., 179 NLRB No. 149; U-Tote M of Oklahoma, 179 NLRB No. 141; International Harvester Co., 179 NLRB No. 124; Renner Plumbing, etc., 179 NLRB No. 103.55 Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in this consolidated proceeding, and pursuant to Section 10(c) of the Act, I hereby make the following: RECOMMENDED ORDER Dixisteel Building, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: a. Directly or indirectly interrogating any employee with respect to his or other employees' union affiliations, desires, sympathies, or activities, so as to interfere with, restrain, or coerce him or them in the exercise of the right of self-organization, the right to bargain collectively, or any other right secured by the National Labor Relations Act, as amended. b. Directly or indirectly threatening to refuse to bargain, or to refrain from bargaining, in good faith with any duly designated representative of its employees; or directly or indirectly indicating that such collective bargaining, or employees' exercise of their right to bargain collectively, will be futile and of no avail. c. Directly or indirectly promising, assuring, or holding out in prospect to any employee any wage increase, economic betterment, or other benefit or thing of value conditioned on his withdrawal from or rejection of, or in order to induce him or other employee to refrain from, union membership, affiliation, sympathy, support, assist- ance, or activity. d. Directly or indirectly threatening any employee with discharge, loss of employment, layoff, economic or other loss, harm, detriment, or reprisal to himself or other employee for exercising or attempting to exercise his right to join or assist a labor organization, his right to bargain collectively, or any other right secured by the National Labor Relations Act, as amended. e. Discouraging membership in or lawful activities on behalf of Local 93, Sheet Metal Workers International Association, AFL-CIO, or any other labor organization of Respondent's employees, by suspending, laying off, discharging, or failing or refusing to permit to work for pay, or to reinstate or rehire, or by threatening to do so, any employee because of his union membership or activities or because of his exercise of any other right under the National Labor Relations Act, as amended; or by otherwise discriminating or threatening to discriminate against any employee in regard to hire or tenure of v Katz, 369 U S 736, 748 fn. 16, N LR B. v P Lorillard Company, 314 U.S. 512, New Alaska Development Corp, 180 NLRB No 150, American Cable Systems, Inc, 179 NLRB No 149 fn 3 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employment or any term or condition of employment because of his union sentiments or activities or his exercise of any right under the Act. f. Failing or refusing to bargain collectively with Local 93, Sheet Metal Workers International Association, AFL-CIO, as the exclusive bargaining representative of the employees in the following unit: All production and maintenance employees, excluding office clerical and professional employees, temporary summer help, guards and supervisors, employed by Dixisteel Building, Inc., at its plant, factory, or premises in Hannibal, Missouri. g. In any other manner interfering with, restraining, or coercing employees in the exercise of their right of self- organization; to form, join, or assist any labor organiza- tion; to bargain collectively through representatives of their own choosing;, to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection; or to refrain from any and all such activities. 2. Take the following affirmative actions which are necessary to effectuate the policies of the Act: a. Make Harry Rouse whole, in the manner set forth in the "Remedy" portion of this decision, for any loss of pay suffered by him as the result of Respondent's unlawful 3- day suspension of Rouse on August 8, 9, and 11, 1969; expunge from its records any reference to said suspension as involving any fault on the part of Rouse; restore Rouse to his full seniority and other rights, privileges, and perquisites as if said suspension had never taken place; and preserve and,. upon request, make available to the Board and its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due hereunder. b. Upon request, bargain collectively in good faith with Local 93, Sheet Metal Workers International Association, AFL-CIO, as the exclusive bargaining representative of Respondent's employees in the unit found appropriate with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment and embody in a signed agreement any understanding reached. c. Post in its plant in Hannibal, Missouri, copies of the notice attached hereto marked "Appendix." 56 Copies of said notice, on forms provided by the Regional Director for Region 14 shall, after being signed by Respondent's authorized representative, be posted by Respondent immediately upon receipt thereof and maintained by it for 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. d. Notify said Regional Director, in writing, within 20 days from receipt of this Decision and Recommended Order, as to what steps have been taken to comply therewith. IT IS FURTHER RECOMMENDED that the complaint in Case 14-CA-5227 be and the same is hereby dismissed as to all violations alleged but not herein found; and that the Union's objections dated September 16, 1969, to the election of September 9, 1969, in Case 14-RC-6230 be sustained to the extent indicated in the findings made in the foregoing decision, that the election therein be set adide and the results annulled, and that the Petition for Certification of Representatives filed by the Petitioner in said case be dismissed and all proceedings held thereunder be vacated.57 56 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and Recommended Order herein shall, as provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become its finding, conclusions, and order, and all objections thereto shall be deemed waived for all purposes . In the event that the Board's Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "Posted By Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 57 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read : "Notify said Regional Director, in writing, within 10 days from the date of this Order, as to what steps have been taken to comply herewith." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial at which all sides had the chance to present evidence and arguments, the decision is that Dixisteel Buildings, Inc., has violated the National Labor Relations Act, and we have therefore been ordered to post this notice. The National Labor Relations Act gives you, as an employee, these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a representa- tive of your own choosing To act together with other employees to bargain collectively or for other mutual aid or protection; and If you wish, not to do any of these things. ACCORDINGLY, WE GIVE YOU THESE ASSUR- ANCES: WE WILL respect all of your rights under the National Labor Relations Act. WE WILL pay Harry Rouse for any pay that he lost when we suspended him on August 8-11, 1969; and we will add interest thereto and correct our records so that it is clear the suspension was due to no misconduct, fault, or blame on his part. WE WILL NOT in any way in violation of the National Labor Relations Act discriminate or threaten to discriminate or retaliate against any employee because he belongs to or helps any union, or because he asks other employees to join a union, or because he wants a union to represent him in collective bargaining, or because he exercises or tries to exercise any other right under the National Labor Relations Act. WE WILL NOT in violation of the National Labor Relations Act discourage membership in, or lawful support or activities in behalf of, Local 93, Sheet Metal Workers International Association, AFL-CIO, or any DIXISTEEL BUILDINGS, INC. 429 other labor organization of our employees or which our employees may wish to join, support, or help. WE WILL NOT in violation of the National Labor Relations WE WILL NOT in violation of the National Labor Relations Act interrogate any employee concerning his or any other employee's union membership, views, sympathies, or activities. WE WILL NOT in violation of the National Labor Relations Act refuse or threaten to refuse to bargain in good faith with your duly designated collective-bargain- ing representative ; AND WE WILL NOT in violation of the Act threaten or indicate that collective bargaining would be futile or do you no good. WE WILL NOT in violation of the National Labor Relations Act promise, assure, or hold out the prospect to you of any wage increase , work improvement, or other benefit of value if you do not join or if you withdraw from of if you do not support a union or if you stop exercising or trying to exercise any right you have under the National Labor Relations Act. WE WILL NOT threaten you with loss of employment, discharge, layoff, loss of overtime, discontinuance of the practice of shifting employees to other job assignments in case the plant is slow, or any other economic loss, harm, detriment, or reprisal, for exercising of trying to exercise your right to join or assist a union or to bargain collectively or any other right under the National Labor Relations Act. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of your right of self-organization ; to form, join, or assist any labor organization; to bargain collectively through represent- atives of your own choosing; to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection; or to refrain from any and all such activities. WE WILL, upon request, bargain collectively in good faith with Local 93, Sheet Metal Workers International Association, AFL-CIO, as the exclusive bargaining representative of our employees in the following appropriate collective bargaining unit, with regard to rates of pay, wages, hours of employment, and other terms and conditions of employment, and sign any agreement reached: All production and maintenance employees, excluding office clerical and professional employ- ees, temporary summer help, guards and supervi- sor, employed by us at our plant, factory, or premises in Hannibal, Missouri. All of you are freelto join or not to join Local 93, Sheet Metal Workers International Association, AFL-CIO, or any other union, as you see fit, without any interference, restraint, or coercion from us in any way, shape, or form. Dated By DIXISTEEL BUILDINGS, INC. (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions, may be directed to the Board's Office, 1040 Boatmen's Bank Building, 314 North Broadway, St. Louis, Missouri 63102, Telephone 314-622-4167.